THIRD DIVISION
[G.R. No. 113725. June 29, 2000] (a)....It is also my command, in this my addition (Codicil), that should I die
JOHNNY S. RABADILLA,[1] petitioner, vs. COURT OF APPEALS AND
MARIA MARLENA[2] COSCOLUELLA Y BELLEZA
VILLACARLOS, respondents.
DECISION
PURISIMA, J.:
This is a petition for review of the decision of the Court of Appeals, [3] dated
December 23, 1993, in CA-G.R. No. CV-35555, which set aside the
decision of Branch 52 of the Regional Trial Court in Bacolod City, and
ordered the defendants-appellees (including herein petitioner), as heirs of
Dr. Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its
fruits and interests, to the estate of Aleja Belleza.
The antecedent facts are as follows:
In a Codicil appended to the Last Will and Testament of testatrix Aleja
Belleza, Dr. Jorge Rabadilla, predecessor-in-interest of the herein petitioner,
Johnny S. Rabadilla, was instituted as a devisee of 511, 855 square meters
of that parcel of land surveyed as Lot No. 1392 of the Bacolod Cadastre.
The said Codicil, which was duly probated and admitted in Special
Proceedings No. 4046 before the then Court of First Instance of Negros
Occidental, contained the following provisions:
"FIRST
I give, leave and bequeath the following property owned by me to Dr. Jorge
Rabadilla resident of 141 P. Villanueva, Pasay City:
(a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of
Title No. RT-4002 (10942), which is registered in my name according to the
records of the Register of Deeds of Negros Occidental.
(b) That should Jorge Rabadilla die ahead of me, the aforementioned
property and the rights which I shall set forth hereinbelow, shall be inherited
and acknowledged by the children and spouse of Jorge Rabadilla.
xxx
FOURTH
and Jorge Rabadilla shall have already received the ownership of the said
Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of
Title No. RT-4002 (10942), and also at the time that the lease of Balbinito G.
Guanzon of the said lot shall expire, Jorge Rabadilla shall have the
obligation until he dies, every year to give to Maria Marlina Coscolluela y
Belleza, Seventy (75) (sic) piculs of Export sugar and Twenty Five (25)
piculs of Domestic sugar, until the said Maria Marlina Coscolluela y Belleza
dies.
FIFTH
(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392
of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-
4002 (10492), shall have the obligation to still give yearly, the sugar as
specified in the Fourth paragraph of his testament, to Maria Marlina
Coscolluela y Belleza on the month of December of each year.
SIXTH
I command, in this my addition (Codicil) that the Lot No. 1392, in the event
that the one to whom I have left and bequeathed, and his heir shall later
sell, lease, mortgage this said Lot, the buyer, lessee, mortgagee, shall have
also the obligation to respect and deliver yearly ONE HUNDRED (100)
piculs of sugar to Maria Marlina Coscolluela y Belleza, on each month of
December, SEVENTY FIVE (75) piculs of Export and TWENTY FIVE (25)
piculs of Domestic, until Maria Marlina shall die, lastly should the buyer,
lessee or the mortgagee of this lot, not have respected my command in this
my addition (Codicil), Maria Marlina Coscolluela y Belleza, shall immediately
seize this Lot No. 1392 from my heir and the latter's heirs, and shall turn it
over to my near desendants, (sic) and the latter shall then have the
obligation to give the ONE HUNDRED (100) piculs of sugar until Maria
Marlina shall die. I further command in this my addition (Codicil) that my heir
and his heirs of this Lot No. 1392, that they will obey and follow that should
they decide to sell, lease, mortgage, they cannot negotiate with others than
my near descendants and my sister."[4]
Pursuant to the same Codicil, Lot No. 1392 was transferred to the
deceased, Dr. Jorge Rabadilla, and Transfer Certificate of Title No. 44498
thereto issued in his name.
Dr. Jorge Rabadilla died in 1983 and was survived by his wife Rufina and
children Johnny (petitioner), Aurora, Ofelia and Zenaida, all surnamed
Rabadilla.
On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos
brought a complaint, docketed as Civil Case No. 5588, before Branch 52 of
the Regional Trial Court in Bacolod City, against the above-mentioned heirs
of Dr. Jorge Rabadilla, to enforce the provisions of subject Codicil. The
Complaint alleged that the defendant-heirs violated the conditions of the
Codicil, in that:
1. Lot No. 1392 was mortgaged to the Philippine National Bank and the
Republic Planters Bank in disregard of the testatrix's specific instruction to
sell, lease, or mortgage only to the near descendants and sister of the
testatrix.
2. Defendant-heirs failed to comply with their obligation to deliver one
hundred (100) piculs of sugar (75 piculs export sugar and 25 piculs
domestic sugar) to plaintiff Maria Marlena Coscolluela y Belleza from sugar
crop years 1985 up to the filing of the complaint as mandated by the Codicil,
despite repeated demands for compliance.
3. The banks failed to comply with the 6th paragraph of the Codicil which
provided that in case of the sale, lease, or mortgage of the property, the
buyer, lessee, or mortgagee shall likewise have the obligation to deliver 100
piculs of sugar per crop year to herein private respondent.
The plaintiff then prayed that judgment be rendered ordering defendant-
heirs to reconvey/return-Lot No. 1392 to the surviving heirs of the late Aleja
Belleza, the cancellation of TCT No. 44498 in the name of the deceased,
Dr. Jorge Rabadilla, and the issuance of a new certificate of title in the
names of the surviving heirs of the late Aleja Belleza.
On February 26, 1990, the defendant-heirs were declared in default but on
March 28, 1990 the Order of Default was lifted, with respect to defendant
Johnny S. Rabadilla, who filed his Answer, accordingly.
During the pre-trial, the parties admitted that:
On November 15, 1998, the plaintiff (private respondent) and a certain Alan
Azurin, son-in-law of the herein petitioner who was lessee of the property
and acting as attorney-in-fact of defendant-heirs, arrived at an amicable
settlement and entered into a Memorandum of Agreement on the obligation
to deliver one hundred piculs of sugar, to the following effect:
"That for crop year 1988-89, the annuity mentioned in Entry No. 49074 of
TCT No. 44489 will be delivered not later than January of 1989, more
specifically, to wit:
75 piculs of 'A' sugar, and 25 piculs of 'B' sugar, or then existing in any of
our names, Mary Rose Rabadilla y Azurin or Alan Azurin, during December
of each sugar crop year, in Azucar Sugar Central; and, this is considered
compliance of the annuity as mentioned, and in the same manner will
compliance of the annuity be in the next succeeding crop years.
That the annuity above stated for crop year 1985-86, 1986-87, and 1987-88,
will be complied in cash equivalent of the number of piculs as mentioned
therein and which is as herein agreed upon, taking into consideration the
composite price of sugar during each sugar crop year, which is in the total
amount of ONE HUNDRED FIVE THOUSAND PESOS (P105,000.00).
That the above-mentioned amount will be paid or delivered on a staggered
cash installment, payable on or before the end of December of every sugar
crop year, to wit:
For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED FIFTY
(P26,250.00) Pesos, payable on or before December of crop year 1988-89;
For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED FIFTY
(P26,250.00) Pesos, payable on or before December of crop year 1989-90;
For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED FIFTY
(P26,250.00) Pesos, payable on or before December of crop year 1990-91;
and
For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED FIFTY
(P26,250.00) Pesos, payable on or before December of crop year 1991-
92."[5]
However, there was no compliance with the aforesaid Memorandum of
Agreement except for a partial delivery of 50.80 piculs of sugar
corresponding to sugar crop year 1988 -1989.
On July 22, 1991, the Regional Trial Court came out with a decision,
dismissing the complaint and disposing as follows:
"WHEREFORE, in the light of the aforegoing findings, the Court finds that
the action is prematurely filed as no cause of action against the defendants
has as yet arose in favor of plaintiff. While there maybe the non-
performance of the command as mandated exaction from them simply
because they are the children of Jorge Rabadilla, the title holder/owner of
the lot in question, does not warrant the filing of the present complaint. The
remedy at bar must fall. Incidentally, being in the category as creditor of the
left estate, it is opined that plaintiff may initiate the intestate proceedings, if
only to establish the heirs of Jorge Rabadilla and in order to give full
meaning and semblance to her claim under the Codicil.
In the light of the aforegoing findings, the Complaint being prematurely filed
is DISMISSED without prejudice.
SO ORDERED."[6]
On appeal by plaintiff, the First Division of the Court of Appeals reversed the
decision of the trial court; ratiocinating and ordering thus:
"Therefore, the evidence on record having established plaintiff-appellant's
right to receive 100 piculs of sugar annually out of the produce of Lot No.
1392; defendants-appellee's obligation under Aleja Belleza's codicil, as
heirs of the modal heir, Jorge Rabadilla, to deliver such amount of sugar to
plaintiff-appellant; defendants-appellee's admitted non-compliance with said
obligation since 1985; and, the punitive consequences enjoined by both the
codicil and the Civil Code, of seizure of Lot No. 1392 and its reversion to the
estate of Aleja Belleza in case of such non-compliance, this Court deems it
proper to order the reconveyance of title over Lot No. 1392 from the estates
of Jorge Rabadilla to the estate of Aleja Belleza. However, plaintiff-appellant
must institute separate proceedings to re-open Aleja Belleza's estate,
secure the appointment of an administrator, and distribute Lot No. 1392 to
Aleja Belleza's legal heirs in order to enforce her right, reserved to her by
the codicil, to receive her legacy of 100 piculs of sugar per year out of the
produce of Lot No. 1392 until she dies.
Accordingly, the decision appealed from is SET ASIDE and another one
entered ordering defendants-appellees, as heirs of Jorge Rabadilla, to
reconvey title over Lot No. 1392, together with its fruits and interests, to the
estate of Aleja Belleza.
SO ORDERED."[7]
Dissatisfied with the aforesaid disposition by the Court of Appeals, petitioner
found his way to this Court via the present petition, contending that the
Court of Appeals erred in ordering the reversion of Lot 1392 to the estate of
the testatrix Aleja Belleza on the basis of paragraph 6 of the Codicil, and in
ruling that the testamentary institution of Dr. Jorge Rabadilla is a modal
institution within the purview of Article 882 of the New Civil Code.
The petition is not impressed with merit.
Petitioner contends that the Court of Appeals erred in resolving the appeal
in accordance with Article 882 of the New Civil Code on modal institutions
and in deviating from the sole issue raised which is the absence or
prematurity of the cause of action. Petitioner maintains that Article 882 does
not find application as there was no modal institution and the testatrix
intended a mere simple substitution - i.e. the instituted heir, Dr. Jorge
Rabadilla, was to be substituted by the testatrix's "near descendants"
should the obligation to deliver the fruits to herein private respondent be not
complied with. And since the testatrix died single and without issue, there
can be no valid substitution and such testamentary provision cannot be
given any effect.
The petitioner theorizes further that there can be no valid substitution for the
reason that the substituted heirs are not definite, as the substituted heirs are
merely referred to as "near descendants" without a definite identity or
reference as to who are the "near descendants" and therefore, under
Articles 843[8] and 845[9] of the New Civil Code, the substitution should be
deemed as not written.
The contentions of petitioner are untenable. Contrary to his supposition that
the Court of Appeals deviated from the issue posed before it, which was the
propriety of the dismissal of the complaint on the ground of prematurity of
cause of action, there was no such deviation. The Court of Appeals found
that the private respondent had a cause of action against the petitioner. The
disquisition made on modal institution was, precisely, to stress that the
private respondent had a legally demandable right against the petitioner
pursuant to subject Codicil; on which issue the Court of Appeals ruled in
accordance with law.
It is a general rule under the law on succession that successional rights are
transmitted from the moment of death of the decedent[10] and compulsory
heirs are called to succeed by operation of law. The legitimate children and
descendants, in relation to their legitimate parents, and the widow or
widower, are compulsory heirs.[11] Thus, the petitioner, his mother and
sisters, as compulsory heirs of the instituted heir, Dr. Jorge Rabadilla,
succeeded the latter by operation of law, without need of further
proceedings, and the successional rights were transmitted to them from the
moment of death of the decedent, Dr. Jorge Rabadilla.
Under Article 776 of the New Civil Code, inheritance includes all the
property, rights and obligations of a person, not extinguished by his death.
Conformably, whatever rights Dr. Jorge Rabadilla had by virtue of subject
Codicil were transmitted to his forced heirs, at the time of his death. And
since obligations not extinguished by death also form part of the estate of
the decedent; corollarily, the obligations imposed by the Codicil on the
deceased Dr. Jorge Rabadilla, were likewise transmitted to his compulsory
heirs upon his death.
In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge
Rabadilla, subject to the condition that the usufruct thereof would be
delivered to the herein private respondent every year. Upon the death of Dr.
Jorge Rabadilla, his compulsory heirs succeeded to his rights and title over
the said property, and they also assumed his (decedent's) obligation to
deliver the fruits of the lot involved to herein private respondent. Such
obligation of the instituted heir reciprocally corresponds to the right of
private respondent over the usufruct, the fulfillment or performance of which
is now being demanded by the latter through the institution of the case at
bar. Therefore, private respondent has a cause of action against petitioner
and the trial court erred in dismissing the complaint below.
Petitioner also theorizes that Article 882 of the New Civil Code on modal
institutions is not applicable because what the testatrix intended was a
substitution - Dr. Jorge Rabadilla was to be substituted by the testatrix's
near descendants should there be noncompliance with the obligation to
deliver the piculs of sugar to private respondent.
Again, the contention is without merit.
Substitution is the designation by the testator of a person or persons to take
the place of the heir or heirs first instituted. Under substitutions in general,
the testator may either (1) provide for the designation of another heir to
whom the property shall pass in case the original heir should die before
him/her, renounce the inheritance or be incapacitated to inherit, as in a
simple substitution,[12] or (2) leave his/her property to one person with the
express charge that it be transmitted subsequently to another or others, as
in a fideicommissary substitution.[13] The Codicil sued upon contemplates
neither of the two.
In simple substitutions, the second heir takes the inheritance in default of
the first heir by reason of incapacity, predecease or renunciation. [14] In the
case under consideration, the provisions of subject Codicil do not provide
that should Dr. Jorge Rabadilla default due to predecease, incapacity or
renunciation, the testatrix's near descendants would substitute him. What
the Codicil provides is that, should Dr. Jorge Rabadilla or his heirs not fulfill
the conditions imposed in the Codicil, the property referred to shall be
seized and turned over to the testatrix's near descendants.
Neither is there a fideicommissary substitution here and on this point,
petitioner is correct. In a fideicommissary substitution, the first heir is strictly
mandated to preserve the property and to transmit the same later to the
second heir.[15] In the case under consideration, the instituted heir is in fact
allowed under the Codicil to alienate the property provided the negotiation is
with the near descendants or the sister of the testatrix. Thus, a very
important element of a fideicommissary substitution is lacking; the obligation
clearly imposing upon the first heir the preservation of the property and its
transmission to the second heir. "Without this obligation to preserve clearly
imposed by the testator in his will, there is no fideicommissary
substitution."[16] Also, the near descendants' right to inherit from the testatrix
is not definite. The property will only pass to them should Dr. Jorge
Rabadilla or his heirs not fulfill the obligation to deliver part of the usufruct to
private respondent.
Another important element of a fideicommissary substitution is also missing
here. Under Article 863, the second heir or the fideicommissary to whom the
property is transmitted must not be beyond one degree from the first heir or
the fiduciary. A fideicommissary substitution is therefore, void if the first heir
is not related by first degree to the second heir.[17] In the case under
scrutiny, the near descendants are not at all related to the instituted heir, Dr.
Jorge Rabadilla.
The Court of Appeals erred not in ruling that the institution of Dr. Jorge
Rabadilla under subject Codicil is in the nature of a modal institution and
therefore, Article 882 of the New Civil Code is the provision of law in point.
Articles 882 and 883 of the New Civil Code provide:
Art. 882. The statement of the object of the institution or the application of
the property left by the testator, or the charge imposed on him, shall not be
considered as a condition unless it appears that such was his intention.
That which has been left in this manner may be claimed at once provided
that the instituted heir or his heirs give security for compliance with the
wishes of the testator and for the return of anything he or they may receive,
together with its fruits and interests, if he or they should disregard this
obligation.
Art. 883. When without the fault of the heir, an institution referred to in the
preceding article cannot take effect in the exact manner stated by the
testator, it shall be complied with in a manner most analogous to and in
conformity with his wishes.
The institution of an heir in the manner prescribed in Article 882 is what is
known in the law of succession as an institucion sub modo or a modal
institution. In a modal institution, the testator states (1) the object of the
institution, (2) the purpose or application of the property left by the testator,
or (3) the charge imposed by the testator upon the heir.[18] A "mode"
imposes an obligation upon the heir or legatee but it does not affect the
efficacy of his rights to the succession.[19] On the other hand, in a conditional
testamentary disposition, the condition must happen or be fulfilled in order
for the heir to be entitled to succeed the testator. The condition suspends
but does not obligate; and the mode obligates but does not suspend. [20] To
some extent, it is similar to a resolutory condition.[21]
From the provisions of the Codicil litigated upon, it can be gleaned
unerringly that the testatrix intended that subject property be inherited by Dr.
Jorge Rabadilla. It is likewise clearly worded that the testatrix imposed an
obligation on the said instituted heir and his successors-in-interest to deliver
one hundred piculs of sugar to the herein private respondent, Marlena
Coscolluela Belleza, during the lifetime of the latter. However, the testatrix
did not make Dr. Jorge Rabadilla's inheritance and the effectivity of his
institution as a devisee, dependent on the performance of the said
obligation. It is clear, though, that should the obligation be not complied
with, the property shall be turned over to the testatrix's near descendants.
The manner of institution of Dr. Jorge Rabadilla under subject Codicil is
evidently modal in nature because it imposes a charge upon the instituted
heir without, however, affecting the efficacy of such institution.
Then too, since testamentary dispositions are generally acts of liberality, an
obligation imposed upon the heir should not be considered a condition
unless it clearly appears from the Will itself that such was the intention of
the testator. In case of doubt, the institution should be considered as modal
and not conditional.[22]
Neither is there tenability in the other contention of petitioner that the private
respondent has only a right of usufruct but not the right to seize the property
itself from the instituted heir because the right to seize was expressly limited
to violations by the buyer, lessee or mortgagee.
In the interpretation of Wills, when an uncertainty arises on the face of the
Will, as to the application of any of its provisions, the testator's intention is to
be ascertained from the words of the Will, taking into consideration the
circumstances under which it was made.[23] Such construction as will sustain
and uphold the Will in all its parts must be adopted.[24]
Subject Codicil provides that the instituted heir is under obligation to deliver
One Hundred (100) piculs of sugar yearly to Marlena Belleza Coscuella.
Such obligation is imposed on the instituted heir, Dr. Jorge Rabadilla, his
heirs, and their buyer, lessee, or mortgagee should they sell, lease,
mortgage or otherwise negotiate the property involved. The Codicil further
provides that in the event that the obligation to deliver the sugar is not
respected, Marlena Belleza Coscuella shall seize the property and turn it
over to the testatrix's near descendants. The non-performance of the said
obligation is thus with the sanction of seizure of the property and reversion
thereof to the testatrix's near descendants. Since the said obligation is
clearly imposed by the testatrix, not only on the instituted heir but also on
his successors-in-interest, the sanction imposed by the testatrix in case of
non-fulfillment of said obligation should equally apply to the instituted heir
and his successors-in-interest.
Similarly unsustainable is petitioner's submission that by virtue of the
amicable settlement, the said obligation imposed by the Codicil has been
assumed by the lessee, and whatever obligation petitioner had become the
obligation of the lessee; that petitioner is deemed to have made a
substantial and constructive compliance of his obligation through the
consummated settlement between the lessee and the private respondent,
and having consummated a settlement with the petitioner, the recourse of
the private respondent is the fulfillment of the obligation under the amicable
settlement and not the seizure of subject property.
Suffice it to state that a Will is a personal, solemn, revocable and free act by
which a person disposes of his property, to take effect after his
death.[25] Since the Will expresses the manner in which a person intends
how his properties be disposed, the wishes and desires of the testator must
be strictly followed. Thus, a Will cannot be the subject of a compromise
agreement which would thereby defeat the very purpose of making a Will.
WHEREFORE, the petition is hereby DISMISSED and the decision of the
Court of Appeals, dated December 23, 1993, in CA-G.R. No. CV-35555
AFFIRMED. No pronouncement as to costs
SO ORDERED.
Melo, J., (Chairman), concur in the separate opinion of Justice Vitug.
Vitug, J., see separate opinion.
Panganiban, J., join the separate opinion of Justice Vitug.
Gonzaga-Reyes, J., no part.

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 100113 September 3, 1991
RENATO CAYETANO, petitioner,
vs.
CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON
APPOINTMENT, and HON. GUILLERMO CARAGUE, in his capacity as
Secretary of Budget and Management, respondents.
Renato L. Cayetano for and in his own behalf.
Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.
PARAS, J.:
We are faced here with a controversy of far-reaching proportions. While
ostensibly only legal issues are involved, the Court's decision in this case
would indubitably have a profound effect on the political aspect of our
national existence.
The 1987 Constitution provides in Section 1 (1), Article IX-C:
There shall be a Commission on Elections composed of a Chairman and six
Commissioners who shall be natural-born citizens of the Philippines and, at
the time of their appointment, at least thirty-five years of age, holders of a
college degree, and must not have been candidates for any elective position
in the immediately preceding -elections. However, a majority thereof,
including the Chairman, shall be members of the Philippine Bar who have
been engaged in the practice of law for at least ten years. (Emphasis
supplied)
The aforequoted provision is patterned after Section l(l), Article XII-C of the
1973 Constitution which similarly provides:
There shall be an independent Commission on Elections composed of a
Chairman and eight Commissioners who shall be natural-born citizens of
the Philippines and, at the time of their appointment, at least thirty-five years
of age and holders of a college degree. However, a majority thereof,
including the Chairman, shall be members of the Philippine Bar who have
been engaged in the practice of law for at least ten years.' (Emphasis
supplied)
Regrettably, however, there seems to be no jurisprudence as to what
constitutes practice of law as a legal qualification to an appointive office.
Black defines "practice of law" as:
The rendition of services requiring the knowledge and the application of
legal principles and technique to serve the interest of another with his
consent. It is not limited to appearing in court, or advising and assisting in
the conduct of litigation, but embraces the preparation of pleadings, and
other papers incident to actions and special proceedings, conveyancing, the
preparation of legal instruments of all kinds, and the giving of all legal advice
to clients. It embraces all advice to clients and all actions taken for them in
matters connected with the law. An attorney engages in the practice of law
by maintaining an office where he is held out to be-an attorney, using a
letterhead describing himself as an attorney, counseling clients in legal
matters, negotiating with opposing counsel about pending litigation, and
fixing and collecting fees for services rendered by his associate. (Black's
Law Dictionary, 3rd ed.)
The practice of law is not limited to the conduct of cases in court. (Land Title
Abstract and Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650) A
person is also considered to be in the practice of law when he:
... for valuable consideration engages in the business of advising person,
firms, associations or corporations as to their rights under the law, or
appears in a representative capacity as an advocate in proceedings pending
or prospective, before any court, commissioner, referee, board, body,
committee, or commission constituted by law or authorized to settle
controversies and there, in such representative capacity performs any act or
acts for the purpose of obtaining or defending the rights of their clients
under the law. Otherwise stated, one who, in a representative capacity,
engages in the business of advising clients as to their rights under the law,
or while so engaged performs any act or acts either in court or outside of
court for that purpose, is engaged in the practice of law. (State ex. rel.
Mckittrick v..C.S. Dudley and Co., 102 S.W. 2d 895, 340 Mo. 852)
This Court in the case of Philippine Lawyers Association v.Agrava, (105
Phil. 173,176-177) stated:
The practice of law is not limited to the conduct of cases or litigation in court;
it embraces the preparation of pleadings and other papers incident to
actions and special proceedings, the management of such actions and
proceedings on behalf of clients before judges and courts, and in addition,
conveying. In general, all advice to clients, and all action taken for them in
matters connected with the law incorporation services, assessment and
condemnation services contemplating an appearance before a judicial body,
the foreclosure of a mortgage, enforcement of a creditor's claim in
bankruptcy and insolvency proceedings, and conducting proceedings in
attachment, and in matters of estate and guardianship have been held to
constitute law practice, as do the preparation and drafting of legal
instruments, where the work done involves the determination by the trained
legal mind of the legal effect of facts and conditions. (5 Am. Jr. p. 262, 263).
(Emphasis supplied)
Practice of law under modem conditions consists in no small part of work
performed outside of any court and having no immediate relation to
proceedings in court. It embraces conveyancing, the giving of legal advice
on a large variety of subjects, and the preparation and execution of legal
instruments covering an extensive field of business and trust relations and
other affairs. Although these transactions may have no direct connection
with court proceedings, they are always subject to become involved in
litigation. They require in many aspects a high degree of legal skill, a wide
experience with men and affairs, and great capacity for adaptation to difficult
and complex situations. These customary functions of an attorney or
counselor at law bear an intimate relation to the administration of justice by
the courts. No valid distinction, so far as concerns the question set forth in
the order, can be drawn between that part of the work of the lawyer which
involves appearance in court and that part which involves advice and
drafting of instruments in his office. It is of importance to the welfare of the
public that these manifold customary functions be performed by persons
possessed of adequate learning and skill, of sound moral character, and
acting at all times under the heavy trust obligations to clients which rests
upon all attorneys. (Moran, Comments on the Rules of Court, Vol. 3 [1953
ed.] , p. 665-666, citing In re Opinion of the Justices [Mass.], 194 N.E. 313,
quoted in Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 179 A.
139,144). (Emphasis ours)
The University of the Philippines Law Center in conducting orientation
briefing for new lawyers (1974-1975) listed the dimensions of the practice of
law in even broader terms as advocacy, counselling and public service.
One may be a practicing attorney in following any line of employment in the
profession. If what he does exacts knowledge of the law and is of a kind
usual for attorneys engaging in the active practice of their profession, and
he follows some one or more lines of employment such as this he is a
practicing attorney at law within the meaning of the statute. (Barr v. Cardell,
155 NW 312)
Practice of law means any activity, in or out of court, which requires the
application of law, legal procedure, knowledge, training and experience. "To
engage in the practice of law is to perform those acts which are
characteristics of the profession. Generally, to practice law is to give notice
or render any kind of service, which device or service requires the use in
any degree of legal knowledge or skill." (111 ALR 23)
The following records of the 1986 Constitutional Commission show that it
has adopted a liberal interpretation of the term "practice of law."
MR. FOZ. Before we suspend the session, may I make a manifestation
which I forgot to do during our review of the provisions on the Commission
on Audit. May I be allowed to make a very brief statement?
THE PRESIDING OFFICER (Mr. Jamir).
The Commissioner will please proceed.
MR. FOZ. This has to do with the qualifications of the members of the
Commission on Audit. Among others, the qualifications provided for by
Section I is that "They must be Members of the Philippine Bar" I am
quoting from the provision "who have been engaged in the practice of
law for at least ten years".
To avoid any misunderstanding which would result in excluding members of
the Bar who are now employed in the COA or Commission on Audit, we
would like to make the clarification that this provision on qualifications
regarding members of the Bar does not necessarily refer or involve actual
practice of law outside the COA We have to interpret this to mean that as
long as the lawyers who are employed in the COA are using their legal
knowledge or legal talent in their respective work within COA, then they are
qualified to be considered for appointment as members or commissioners,
even chairman, of the Commission on Audit.
This has been discussed by the Committee on Constitutional Commissions
and Agencies and we deem it important to take it up on the floor so that this
interpretation may be made available whenever this provision on the
qualifications as regards members of the Philippine Bar engaging in the
practice of law for at least ten years is taken up.
MR. OPLE. Will Commissioner Foz yield to just one question.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is
equivalent to the requirement of a law practice that is set forth in the Article
on the Commission on Audit?
MR. FOZ. We must consider the fact that the work of COA, although it is
auditing, will necessarily involve legal work; it will involve legal work. And,
therefore, lawyers who are employed in COA now would have the
necessary qualifications in accordance with the Provision on qualifications
under our provisions on the Commission on Audit. And, therefore, the
answer is yes.
MR. OPLE. Yes. So that the construction given to this is that this is
equivalent to the practice of law.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Thank you.
... ( Emphasis supplied)
Section 1(1), Article IX-D of the 1987 Constitution, provides, among others,
that the Chairman and two Commissioners of the Commission on Audit
(COA) should either be certified public accountants with not less than ten
years of auditing practice, or members of the Philippine Bar who have been
engaged in the practice of law for at least ten years. (emphasis supplied)
Corollary to this is the term "private practitioner" and which is in many ways
synonymous with the word "lawyer." Today, although many lawyers do not
engage in private practice, it is still a fact that the majority of lawyers are
private practitioners. (Gary Munneke, Opportunities in Law Careers [VGM
Career Horizons: Illinois], [1986], p. 15).
At this point, it might be helpful to define private practice. The term, as
commonly understood, means "an individual or organization engaged in the
business of delivering legal services." (Ibid.). Lawyers who practice alone
are often called "sole practitioners." Groups of lawyers are called "firms."
The firm is usually a partnership and members of the firm are the partners.
Some firms may be organized as professional corporations and the
members called shareholders. In either case, the members of the firm are
the experienced attorneys. In most firms, there are younger or more
inexperienced salaried attorneyscalled "associates." (Ibid.).
The test that defines law practice by looking to traditional areas of law
practice is essentially tautologous, unhelpful defining the practice of law as
that which lawyers do. (Charles W. Wolfram, Modern Legal Ethics [West
Publishing Co.: Minnesota, 1986], p. 593). The practice of law is defined as
the performance of any acts . . . in or out of court, commonly understood to
be the practice of law. (State Bar Ass'n v. Connecticut Bank & Trust Co.,
145 Conn. 222, 140 A.2d 863, 870 [1958] [quoting Grievance Comm. v.
Payne, 128 Conn. 325, 22 A.2d 623, 626 [1941]). Because lawyers perform
almost every function known in the commercial and governmental realm,
such a definition would obviously be too global to be workable.(Wolfram, op.
cit.).
The appearance of a lawyer in litigation in behalf of a client is at once the
most publicly familiar role for lawyers as well as an uncommon role for the
average lawyer. Most lawyers spend little time in courtrooms, and a large
percentage spend their entire practice without litigating a case. (Ibid., p.
593). Nonetheless, many lawyers do continue to litigate and the litigating
lawyer's role colors much of both the public image and the self perception of
the legal profession. (Ibid.).
In this regard thus, the dominance of litigation in the public mind reflects
history, not reality. (Ibid.). Why is this so? Recall that the late Alexander
SyCip, a corporate lawyer, once articulated on the importance of a lawyer
as a business counselor in this wise: "Even today, there are still uninformed
laymen whose concept of an attorney is one who principally tries cases
before the courts. The members of the bench and bar and the informed
laymen such as businessmen, know that in most developed societies today,
substantially more legal work is transacted in law offices than in the
courtrooms. General practitioners of law who do both litigation and non-
litigation work also know that in most cases they find themselves spending
more time doing what [is] loosely desccribe[d] as business counseling than
in trying cases. The business lawyer has been described as the planner, the
diagnostician and the trial lawyer, the surgeon. I[t] need not [be] stress[ed]
that in law, as in medicine, surgery should be avoided where internal
medicine can be effective." (Business Star, "Corporate Finance Law," Jan.
11, 1989, p. 4).
In the course of a working day the average general practitioner wig engage
in a number of legal tasks, each involving different legal doctrines, legal
skills, legal processes, legal institutions, clients, and other interested parties.
Even the increasing numbers of lawyers in specialized practice wig usually
perform at least some legal services outside their specialty. And even within
a narrow specialty such as tax practice, a lawyer will shift from one legal
task or role such as advice-giving to an importantly different one such as
representing a client before an administrative agency. (Wolfram, supra, p.
687).
By no means will most of this work involve litigation, unless the lawyer is
one of the relatively rare types a litigator who specializes in this work to
the exclusion of much else. Instead, the work will require the lawyer to have
mastered the full range of traditional lawyer skills of client counselling,
advice-giving, document drafting, and negotiation. And increasingly lawyers
find that the new skills of evaluation and mediation are both effective for
many clients and a source of employment. (Ibid.).
Most lawyers will engage in non-litigation legal work or in litigation work that
is constrained in very important ways, at least theoretically, so as to remove
from it some of the salient features of adversarial litigation. Of these special
roles, the most prominent is that of prosecutor. In some lawyers' work the
constraints are imposed both by the nature of the client and by the way in
which the lawyer is organized into a social unit to perform that work. The
most common of these roles are those of corporate practice and
government legal service. (Ibid.).
In several issues of the Business Star, a business daily, herein below
quoted are emerging trends in corporate law practice, a departure from the
traditional concept of practice of law.
We are experiencing today what truly may be called a revolutionary
transformation in corporate law practice. Lawyers and other professional
groups, in particular those members participating in various legal-policy
decisional contexts, are finding that understanding the major emerging
trends in corporation law is indispensable to intelligent decision-making.
Constructive adjustment to major corporate problems of today requires an
accurate understanding of the nature and implications of the corporate law
research function accompanied by an accelerating rate of information
accumulation. The recognition of the need for such improved corporate legal
policy formulation, particularly "model-making" and "contingency planning,"
has impressed upon us the inadequacy of traditional procedures in many
decisional contexts.
In a complex legal problem the mass of information to be processed, the
sorting and weighing of significant conditional factors, the appraisal of major
trends, the necessity of estimating the consequences of given courses of
action, and the need for fast decision and response in situations of acute
danger have prompted the use of sophisticated concepts of information flow
theory, operational analysis, automatic data processing, and electronic
computing equipment. Understandably, an improved decisional structure
must stress the predictive component of the policy-making process, wherein
a "model", of the decisional context or a segment thereof is developed to
test projected alternative courses of action in terms of futuristic effects
flowing therefrom.
Although members of the legal profession are regularly engaged in
predicting and projecting the trends of the law, the subject of corporate
finance law has received relatively little organized and formalized attention
in the philosophy of advancing corporate legal education. Nonetheless, a
cross-disciplinary approach to legal research has become a vital necessity.
Certainly, the general orientation for productive contributions by those
trained primarily in the law can be improved through an early introduction to
multi-variable decisional context and the various approaches for handling
such problems. Lawyers, particularly with either a master's or doctorate
degree in business administration or management, functioning at the legal
policy level of decision-making now have some appreciation for the
concepts and analytical techniques of other professions which are currently
engaged in similar types of complex decision-making.
Truth to tell, many situations involving corporate finance problems would
require the services of an astute attorney because of the complex legal
implications that arise from each and every necessary step in securing and
maintaining the business issue raised. (Business Star, "Corporate Finance
Law," Jan. 11, 1989, p. 4).
In our litigation-prone country, a corporate lawyer is assiduously referred to
as the "abogado de campanilla." He is the "big-time" lawyer, earning big
money and with a clientele composed of the tycoons and magnates of
business and industry.
Despite the growing number of corporate lawyers, many people could not
explain what it is that a corporate lawyer does. For one, the number of
attorneys employed by a single corporation will vary with the size and type
of the corporation. Many smaller and some large corporations farm out all
their legal problems to private law firms. Many others have in-house counsel
only for certain matters. Other corporation have a staff large enough to
handle most legal problems in-house.
A corporate lawyer, for all intents and purposes, is a lawyer who handles the
legal affairs of a corporation. His areas of concern or jurisdiction may
include, inter alia: corporate legal research, tax laws research, acting out as
corporate secretary (in board meetings), appearances in both courts and
other adjudicatory agencies (including the Securities and Exchange
Commission), and in other capacities which require an ability to deal with
the law.
At any rate, a corporate lawyer may assume responsibilities other than the
legal affairs of the business of the corporation he is representing. These
include such matters as determining policy and becoming involved in
management. ( Emphasis supplied.)
In a big company, for example, one may have a feeling of being isolated
from the action, or not understanding how one's work actually fits into the
work of the orgarnization. This can be frustrating to someone who needs to
see the results of his work first hand. In short, a corporate lawyer is
sometimes offered this fortune to be more closely involved in the running of
the business.
Moreover, a corporate lawyer's services may sometimes be engaged by a
multinational corporation (MNC). Some large MNCs provide one of the few
opportunities available to corporate lawyers to enter the international law
field. After all, international law is practiced in a relatively small number of
companies and law firms. Because working in a foreign country is perceived
by many as glamorous, tills is an area coveted by corporate lawyers. In
most cases, however, the overseas jobs go to experienced attorneys while
the younger attorneys do their "international practice" in law libraries.
(Business Star, "Corporate Law Practice," May 25,1990, p. 4).
This brings us to the inevitable, i.e., the role of the lawyer in the realm of
finance. To borrow the lines of Harvard-educated lawyer Bruce Wassertein,
to wit: "A bad lawyer is one who fails to spot problems, a good lawyer is one
who perceives the difficulties, and the excellent lawyer is one who
surmounts them." (Business Star, "Corporate Finance Law," Jan. 11, 1989,
p. 4).
Today, the study of corporate law practice direly needs a "shot in the arm,"
so to speak. No longer are we talking of the traditional law teaching method
of confining the subject study to the Corporation Code and the Securities
Code but an incursion as well into the intertwining modern management
issues.
Such corporate legal management issues deal primarily with three (3) types
of learning: (1) acquisition of insights into current advances which are of
particular significance to the corporate counsel; (2) an introduction to usable
disciplinary skins applicable to a corporate counsel's management
responsibilities; and (3) a devotion to the organization and management of
the legal function itself.
These three subject areas may be thought of as intersecting circles, with a
shared area linking them. Otherwise known as "intersecting managerial
jurisprudence," it forms a unifying theme for the corporate counsel's total
learning.
Some current advances in behavior and policy sciences affect the counsel's
role. For that matter, the corporate lawyer reviews the globalization process,
including the resulting strategic repositioning that the firms he provides
counsel for are required to make, and the need to think about a
corporation's; strategy at multiple levels. The salience of the nation-state is
being reduced as firms deal both with global multinational entities and
simultaneously with sub-national governmental units. Firms increasingly
collaborate not only with public entities but with each other often with
those who are competitors in other arenas.
Also, the nature of the lawyer's participation in decision-making within the
corporation is rapidly changing. The modem corporate lawyer has gained a
new role as a stakeholder in some cases participating in the organization
and operations of governance through participation on boards and other
decision-making roles. Often these new patterns develop alongside existing
legal institutions and laws are perceived as barriers. These trends are
complicated as corporations organize for global operations. ( Emphasis
supplied)
The practising lawyer of today is familiar as well with governmental policies
toward the promotion and management of technology. New collaborative
arrangements for promoting specific technologies or competitiveness more
generally require approaches from industry that differ from older, more
adversarial relationships and traditional forms of seeking to influence
governmental policies. And there are lessons to be learned from other
countries. In Europe, Esprit, Eureka and Race are examples of collaborative
efforts between governmental and business Japan's MITI is world famous.
(Emphasis supplied)
Following the concept of boundary spanning, the office of the Corporate
Counsel comprises a distinct group within the managerial structure of all
kinds of organizations. Effectiveness of both long-term and temporary
groups within organizations has been found to be related to indentifiable
factors in the group-context interaction such as the groups actively revising
their knowledge of the environment coordinating work with outsiders,
promoting team achievements within the organization. In general, such
external activities are better predictors of team performance than internal
group processes.
In a crisis situation, the legal managerial capabilities of the corporate lawyer
vis-a-vis the managerial mettle of corporations are challenged. Current
research is seeking ways both to anticipate effective managerial procedures
and to understand relationships of financial liability and insurance
considerations. (Emphasis supplied)
Regarding the skills to apply by the corporate counsel, three factors
are apropos:
First System Dynamics. The field of systems dynamics has been found an
effective tool for new managerial thinking regarding both planning and
pressing immediate problems. An understanding of the role of feedback
loops, inventory levels, and rates of flow, enable users to simulate all sorts
of systematic problems physical, economic, managerial, social, and
psychological. New programming techniques now make the system
dynamics principles more accessible to managers including corporate
counsels. (Emphasis supplied)
Second Decision Analysis. This enables users to make better decisions
involving complexity and uncertainty. In the context of a law department, it
can be used to appraise the settlement value of litigation, aid in negotiation
settlement, and minimize the cost and risk involved in managing a portfolio
of cases. (Emphasis supplied)
Third Modeling for Negotiation Management. Computer-based models can
be used directly by parties and mediators in all lands of negotiations. All
integrated set of such tools provide coherent and effective negotiation
support, including hands-on on instruction in these techniques. A simulation
case of an international joint venture may be used to illustrate the point.
[Be this as it may,] the organization and management of the legal function,
concern three pointed areas of consideration, thus:
Preventive Lawyering. Planning by lawyers requires special skills that
comprise a major part of the general counsel's responsibilities. They differ
from those of remedial law. Preventive lawyering is concerned with
minimizing the risks of legal trouble and maximizing legal rights for such
legal entities at that time when transactional or similar facts are being
considered and made.
Managerial Jurisprudence. This is the framework within which are
undertaken those activities of the firm to which legal consequences attach. It
needs to be directly supportive of this nation's evolving economic and
organizational fabric as firms change to stay competitive in a global,
interdependent environment. The practice and theory of "law" is not
adequate today to facilitate the relationships needed in trying to make a
global economy work.
Organization and Functioning of the Corporate Counsel's Office. The
general counsel has emerged in the last decade as one of the most vibrant
subsets of the legal profession. The corporate counsel hear responsibility
for key aspects of the firm's strategic issues, including structuring its global
operations, managing improved relationships with an increasingly diversified
body of employees, managing expanded liability exposure, creating new
and varied interactions with public decision-makers, coping internally with
more complex make or by decisions.
This whole exercise drives home the thesis that knowing corporate law is
not enough to make one a good general corporate counsel nor to give him a
full sense of how the legal system shapes corporate activities. And even if
the corporate lawyer's aim is not the understand all of the law's effects on
corporate activities, he must, at the very least, also gain a working
knowledge of the management issues if only to be able to grasp not only the
basic legal "constitution' or makeup of the modem corporation. "Business
Star", "The Corporate Counsel," April 10, 1991, p. 4).
The challenge for lawyers (both of the bar and the bench) is to have more
than a passing knowledge of financial law affecting each aspect of their
work. Yet, many would admit to ignorance of vast tracts of the financial law
territory. What transpires next is a dilemma of professional security: Will the
lawyer admit ignorance and risk opprobrium?; or will he feign understanding
and risk exposure? (Business Star, "Corporate Finance law," Jan. 11, 1989,
p. 4).
Respondent Christian Monsod was nominated by President Corazon C.
Aquino to the position of Chairman of the COMELEC in a letter received by
the Secretariat of the Commission on Appointments on April 25, 1991.
Petitioner opposed the nomination because allegedly Monsod does not
possess the required qualification of having been engaged in the practice of
law for at least ten years.
On June 5, 1991, the Commission on Appointments confirmed the
nomination of Monsod as Chairman of the COMELEC. On June 18, 1991,
he took his oath of office. On the same day, he assumed office as Chairman
of the COMELEC.
Challenging the validity of the confirmation by the Commission on
Appointments of Monsod's nomination, petitioner as a citizen and taxpayer,
filed the instant petition for certiorari and Prohibition praying that said
confirmation and the consequent appointment of Monsod as Chairman of
the Commission on Elections be declared null and void.
Atty. Christian Monsod is a member of the Philippine Bar, having passed the
bar examinations of 1960 with a grade of 86-55%. He has been a dues
paying member of the Integrated Bar of the Philippines since its inception in
1972-73. He has also been paying his professional license fees as lawyer
for more than ten years. (p. 124, Rollo)
After graduating from the College of Law (U.P.) and having hurdled the
bar, Atty. Monsod worked in the law office of his father. During his stint in
the World Bank Group (1963-1970), Monsod worked as an operations
officer for about two years in Costa Rica and Panama, which involved
getting acquainted with the laws of member-countries negotiating loans and
coordinating legal, economic, and project work of the Bank. Upon returning
to the Philippines in 1970, he worked with the Meralco Group, served as
chief executive officer of an investment bank and subsequently of a
business conglomerate, and since 1986, has rendered services to various
companies as a legal and economic consultant or chief executive officer. As
former Secretary-General (1986) and National Chairman (1987) of
NAMFREL. Monsod's work involved being knowledgeable in election law.
He appeared for NAMFREL in its accreditation hearings before the
Comelec. In the field of advocacy, Monsod, in his personal capacity and as
former Co-Chairman of the Bishops Businessmen's Conference for Human
Development, has worked with the under privileged sectors, such as the
farmer and urban poor groups, in initiating, lobbying for and engaging in
affirmative action for the agrarian reform law and lately the urban land
reform bill. Monsod also made use of his legal knowledge as a member of
the Davide Commission, a quast judicial body, which conducted numerous
hearings (1990) and as a member of the Constitutional Commission (1986-
1987), and Chairman of its Committee on Accountability of Public Officers,
for which he was cited by the President of the Commission, Justice Cecilia
Muoz-Palma for "innumerable amendments to reconcile government
functions with individual freedoms and public accountability and the party-
list system for the House of Representative. (pp. 128-129 Rollo) ( Emphasis
supplied)
Just a word about the work of a negotiating team of which Atty. Monsod
used to be a member.
In a loan agreement, for instance, a negotiating panel acts as a team, and
which is adequately constituted to meet the various contingencies that arise
during a negotiation. Besides top officials of the Borrower concerned, there
are the legal officer (such as the legal counsel), the finance manager, and
an operations officer (such as an official involved in negotiating the
contracts) who comprise the members of the team. (Guillermo V. Soliven,
"Loan Negotiating Strategies for Developing Country Borrowers," Staff
Paper No. 2, Central Bank of the Philippines, Manila, 1982, p. 11).
(Emphasis supplied)
After a fashion, the loan agreement is like a country's Constitution; it lays
down the law as far as the loan transaction is concerned. Thus, the meat of
any Loan Agreement can be compartmentalized into five (5) fundamental
parts: (1) business terms; (2) borrower's representation; (3) conditions of
closing; (4) covenants; and (5) events of default. (Ibid., p. 13).
In the same vein, lawyers play an important role in any debt restructuring
program. For aside from performing the tasks of legislative drafting and
legal advising, they score national development policies as key factors in
maintaining their countries' sovereignty. (Condensed from the work paper,
entitled "Wanted: Development Lawyers for Developing Nations," submitted
by L. Michael Hager, regional legal adviser of the United States Agency for
International Development, during the Session on Law for the Development
of Nations at the Abidjan World Conference in Ivory Coast, sponsored by
the World Peace Through Law Center on August 26-31, 1973). ( Emphasis
supplied)
Loan concessions and compromises, perhaps even more so than purely
renegotiation policies, demand expertise in the law of contracts, in
legislation and agreement drafting and in renegotiation. Necessarily, a
sovereign lawyer may work with an international business specialist or an
economist in the formulation of a model loan agreement. Debt restructuring
contract agreements contain such a mixture of technical language that they
should be carefully drafted and signed only with the advise of competent
counsel in conjunction with the guidance of adequate technical support
personnel. (See International Law Aspects of the Philippine External Debts,
an unpublished dissertation, U.S.T. Graduate School of Law, 1987, p. 321).
( Emphasis supplied)
A critical aspect of sovereign debt restructuring/contract construction is the
set of terms and conditions which determines the contractual remedies for a
failure to perform one or more elements of the contract. A good agreement
must not only define the responsibilities of both parties, but must also state
the recourse open to either party when the other fails to discharge an
obligation. For a compleat debt restructuring represents a devotion to that
principle which in the ultimate analysis is sine qua non for foreign loan
agreements-an adherence to the rule of law in domestic and international
affairs of whose kind U.S. Supreme Court Justice Oliver Wendell Holmes,
Jr. once said: "They carry no banners, they beat no drums; but where they
are, men learn that bustle and bush are not the equal of quiet genius and
serene mastery." (See Ricardo J. Romulo, "The Role of Lawyers in Foreign
Investments," Integrated Bar of the Philippine Journal, Vol. 15, Nos. 3 and
4, Third and Fourth Quarters, 1977, p. 265).
Interpreted in the light of the various definitions of the term Practice of law".
particularly the modern concept of law practice, and taking into
consideration the liberal construction intended by the framers of the
Constitution, Atty. Monsod's past work experiences as a lawyer-economist,
a lawyer-manager, a lawyer-entrepreneur of industry, a lawyer-negotiator of
contracts, and a lawyer-legislator of both the rich and the poor verily
more than satisfy the constitutional requirement that he has been
engaged in the practice of law for at least ten years.
Besides in the leading case of Luego v. Civil Service Commission, 143
SCRA 327, the Court said:
Appointment is an essentially discretionary power and must be performed
by the officer in which it is vested according to his best lights, the only
condition being that the appointee should possess the qualifications
required by law. If he does, then the appointment cannot be faulted on the
ground that there are others better qualified who should have been
preferred. This is a political question involving considerations of wisdom
which only the appointing authority can decide. (emphasis supplied)
No less emphatic was the Court in the case of (Central Bank v. Civil Service
Commission, 171 SCRA 744) where it stated:
It is well-settled that when the appointee is qualified, as in this case, and all
the other legal requirements are satisfied, the Commission has no
alternative but to attest to the appointment in accordance with the Civil
Service Law. The Commission has no authority to revoke an appointment
on the ground that another person is more qualified for a particular position.
It also has no authority to direct the appointment of a substitute of its choice.
To do so would be an encroachment on the discretion vested upon the
appointing authority. An appointment is essentially within the discretionary
power of whomsoever it is vested, subject to the only condition that the
appointee should possess the qualifications required by law. ( Emphasis
supplied)
The appointing process in a regular appointment as in the case at bar,
consists of four (4) stages: (1) nomination; (2) confirmation by the
Commission on Appointments; (3) issuance of a commission (in the
Philippines, upon submission by the Commission on Appointments of its
certificate of confirmation, the President issues the permanent appointment;
and (4) acceptance e.g., oath-taking, posting of bond, etc. . . . (Lacson v.
Romero, No. L-3081, October 14, 1949; Gonzales, Law on Public Officers,
p. 200)
The power of the Commission on Appointments to give its consent to the
nomination of Monsod as Chairman of the Commission on Elections is
mandated by Section 1(2) Sub-Article C, Article IX of the Constitution which
provides:
The Chairman and the Commisioners shall be appointed by the President
with the consent of the Commission on Appointments for a term of seven
years without reappointment. Of those first appointed, three Members shall
hold office for seven years, two Members for five years, and the last
Members for three years, without reappointment. Appointment to any
vacancy shall be only for the unexpired term of the predecessor. In no case
shall any Member be appointed or designated in a temporary or acting
capacity.
Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his
definition of the practice of law is the traditional or stereotyped notion of law
practice, as distinguished from the modern concept of the practice of law,
which modern connotation is exactly what was intended by the eminent
framers of the 1987 Constitution. Moreover, Justice Padilla's definition
would require generally a habitual law practice, perhaps practised two or
three times a week and would outlaw say, law practice once or twice a year
for ten consecutive years. Clearly, this is far from the constitutional intent.
Upon the other hand, the separate opinion of Justice Isagani Cruz states
that in my written opinion, I made use of a definition of law practice which
really means nothing because the definition says that law practice " . . . is
what people ordinarily mean by the practice of law." True I cited the
definition but only by way of sarcasm as evident from my statement that the
definition of law practice by "traditional areas of law practice is
essentially tautologous" or defining a phrase by means of the phrase itself
that is being defined.
Justice Cruz goes on to say in substance that since the law covers almost
all situations, most individuals, in making use of the law, or in advising
others on what the law means, are actually practicing law. In that sense,
perhaps, but we should not lose sight of the fact that Mr. Monsod is a
lawyer, a member of the Philippine Bar, who has been practising law for
over ten years. This is different from the acts of persons practising
law, without first becoming lawyers.
Justice Cruz also says that the Supreme Court can even disqualify an No blade shall touch his skin;
elected President of the Philippines, say, on the ground that he lacks one or
more qualifications. This matter, I greatly doubt. For one thing, how can an No blood shall flow from his veins.
action or petition be brought against the President? And even assuming that
he is indeed disqualified, how can the action be entertained since he is the
When Samson (his long hair cut by Delilah) was captured, the procurator
incumbent President?
placed an iron rod burning white-hot two or three inches away from in front
of Samson's eyes. This blinded the man. Upon hearing of what had
We now proceed: happened to her beloved, Delilah was beside herself with anger, and fuming
with righteous fury, accused the procurator of reneging on his word. The
The Commission on the basis of evidence submitted doling the public procurator calmly replied: "Did any blade touch his skin? Did any blood flow
hearings on Monsod's confirmation, implicitly determined that he possessed from his veins?" The procurator was clearly relying on the letter, not the
the necessary qualifications as required by law. The judgment rendered by spirit of the agreement.
the Commission in the exercise of such an acknowledged power is beyond
judicial interference except only upon a clear showing of a grave abuse of In view of the foregoing, this petition is hereby DISMISSED.
discretion amounting to lack or excess of jurisdiction. (Art. VIII, Sec. 1
Constitution). Thus, only where such grave abuse of discretion is clearly
SO ORDERED.
shown shall the Court interfere with the Commission's judgment. In the
instant case, there is no occasion for the exercise of the Court's corrective
power, since no abuse, much less a grave abuse of discretion, that would Fernan, C.J., Grio-Aquino and Medialdea, JJ., concur.
amount to lack or excess of jurisdiction and would warrant the issuance of Feliciano, J., I certify that he voted to dismiss the petition. (Fernan, C.J.)
the writs prayed, for has been clearly shown.
Sarmiento, J., is on leave.
Additionally, consider the following:
Regalado, and Davide, Jr., J., took no part.
(1) If the Commission on Appointments rejects a nominee by the President,
may the Supreme Court reverse the Commission, and thus in
effect confirm the appointment? Clearly, the answer is in the negative.

(2) In the same vein, may the Court reject the nominee, whom the
Commission has confirmed? The answer is likewise clear.

(3) If the United States Senate (which is the confirming body in the U.S. Separate Opinions
Congress) decides to confirm a Presidential nominee, it would be incredible
that the U.S. Supreme Court would still reverse the U.S. Senate.

Finally, one significant legal maxim is: NARVASA, J., concurring:

We must interpret not by the letter that killeth, but by the spirit that giveth
life.
Take this hypothetical case of Samson and Delilah. Once, the procurator of
Judea asked Delilah (who was Samson's beloved) for help in capturing
Samson. Delilah agreed on condition that
I concur with the decision of the majority written by Mr. Justice Paras, albeit
only in the result; it does not appear to me that there has been an adequate
showing that the challenged determination by the Commission on
Appointments-that the appointment of respondent Monsod as Chairman of
the Commission on Elections should, on the basis of his stated
qualifications and after due assessment thereof, be confirmed-was attended
by error so gross as to amount to grave abuse of discretion and
consequently merits nullification by this Court in accordance with the second
paragraph of Section 1, Article VIII of the Constitution. I therefore vote to
DENY the petition.
PADILLA, J., dissenting:
The records of this case will show that when the Court first deliberated on
the Petition at bar, I voted not only to require the respondents to comment
on the Petition, but I was the sole vote for the issuance of a temporary
restraining order to enjoin respondent Monsod from assuming the position
of COMELEC Chairman, while the Court deliberated on his constitutional
qualification for the office. My purpose in voting for a TRO was to prevent
the inconvenience and even embarrassment to all parties concerned were
the Court to finally decide for respondent Monsod's disqualification.
Moreover, a reading of the Petition then in relation to established
jurisprudence already showed prima facie that respondent Monsod did not
possess the needed qualification, that is, he had not engaged in the practice
of law for at least ten (10) years prior to his appointment as COMELEC
Chairman.
After considering carefully respondent Monsod's comment, I am even more
convinced that the constitutional requirement of "practice of law for at least
ten (10) years" has not been met.
The procedural barriers interposed by respondents deserve scant
consideration because, ultimately, the core issue to be resolved in this
petition is the proper construal of the constitutional provision requiring a
majority of the membership of COMELEC, including the Chairman thereof to
"have been engaged in the practice of law for at least ten (10) years." (Art.
IX(C), Section 1(1), 1987 Constitution). Questions involving the construction
of constitutional provisions are best left to judicial resolution. As declared
in Angara v. Electoral Commission, (63 Phil. 139) "upon the judicial
department is thrown the solemn and inescapable obligation of interpreting
the Constitution and defining constitutional boundaries."
The Constitution has imposed clear and specific standards for a COMELEC
Chairman. Among these are that he must have been "engaged in the
practice of law for at least ten (10) years." It is the bounden duty of this
Court to ensure that such standard is met and complied with.
What constitutes practice of law? As commonly understood, "practice"
refers to the actual performance or application of knowledge as
distinguished from mere possession of knowledge; it connotes
an active, habitual, repeated or customary action.1 To "practice" law, or any
profession for that matter, means, to exercise or pursue an employment or
profession actively, habitually, repeatedly or customarily.
Therefore, a doctor of medicine who is employed and is habitually
performing the tasks of a nursing aide, cannot be said to be in the "practice
of medicine." A certified public accountant who works as a clerk, cannot be
said to practice his profession as an accountant. In the same way, a lawyer
who is employed as a business executive or a corporate manager, other
than as head or attorney of a Legal Department of a corporation or a
governmental agency, cannot be said to be in the practice of law.
As aptly held by this Court in the case of People vs. Villanueva:2
Practice is more than an isolated appearance for it consists in frequent or
customary actions, a succession of acts of the same kind. In other words, it
is frequent habitual exercise (State vs- Cotner, 127, p. 1, 87 Kan. 864, 42
LRA, M.S. 768). Practice of law to fall within the prohibition of statute has
been interpreted as customarily or habitually holding one's self out to the
public as a lawyer and demanding payment for such services (State vs.
Bryan, 4 S.E. 522, 98 N.C. 644,647.) ... (emphasis supplied).
It is worth mentioning that the respondent Commission on Appointments in
a Memorandum it prepared, enumerated several factors determinative of
whether a particular activity constitutes "practice of law." It states:
1. Habituality. The term "practice of law" implies customarily or habitually
holding one's self out to the public as a lawyer (People vs. Villanueva, 14
SCRA 109 citing State v. Boyen, 4 S.E. 522, 98 N.C. 644) such as when
one sends a circular announcing the establishment of a law office for the
general practice of law (U.S. v. Ney Bosque, 8 Phil. 146), or when one takes
the oath of office as a lawyer before a notary public, and files a
manifestation with the Supreme Court informing it of his intention to practice
law in all courts in the country (People v. De Luna, 102 Phil. 968).
Practice is more than an isolated appearance for it consists in frequent or
customary action, a succession of acts of the same kind. In other words, it is
a habitual exercise (People v. Villanueva, 14 SCRA 109 citing State v.
Cotner, 127, p. 1, 87 Kan, 864).
2. Compensation. Practice of law implies that one must have presented
himself to be in the active and continued practice of the legal profession and
that his professional services are available to the public for compensation,
as a service of his livelihood or in consideration of his said services. (People
v. Villanueva, supra). Hence, charging for services such as preparation of
documents involving the use of legal knowledge and skill is within the term
"practice of law" (Ernani Pao, Bar Reviewer in Legal and Judicial Ethics,
1988 ed., p. 8 citing People v. People's Stockyards State Bank, 176 N.B.
901) and, one who renders an opinion as to the proper interpretation of a
statute, and receives pay for it, is to that extent, practicing law
(Martin, supra, p. 806 citing Mendelaun v. Gilbert and Barket Mfg. Co., 290
N.Y.S. 462) If compensation is expected, all advice to clients and all action
taken for them in matters connected with the law; are practicing law.
(Elwood Fitchette et al., v. Arthur C. Taylor, 94A-L.R. 356-359)
3. Application of law legal principle practice or procedure which calls for
legal knowledge, training and experience is within the term "practice of law".
(Martin supra)
4. Attorney-client relationship. Engaging in the practice of law presupposes
the existence of lawyer-client relationship. Hence, where a lawyer
undertakes an activity which requires knowledge of law but involves no
attorney-client relationship, such as teaching law or writing law books or
articles, he cannot be said to be engaged in the practice of his profession or
a lawyer (Agpalo, Legal Ethics, 1989 ed., p. 30).3
The above-enumerated factors would, I believe, be useful aids in
determining whether or not respondent Monsod meets the constitutional
qualification of practice of law for at least ten (10) years at the time of his
appointment as COMELEC Chairman.
The following relevant questions may be asked:
1. Did respondent Monsod perform any of the tasks which are peculiar to
the practice of law?
2. Did respondent perform such tasks customarily or habitually?
3. Assuming that he performed any of such tasks habitually, did he do so
HABITUALLY FOR AT LEAST TEN (10) YEARS prior to his appointment as
COMELEC Chairman?
Given the employment or job history of respondent Monsod as appears from
the records, I am persuaded that if ever he did perform any of the tasks
which constitute the practice of law, he did not do so HABITUALLY for at
least ten (10) years prior to his appointment as COMELEC Chairman.
While it may be granted that he performed tasks and activities which could
be latitudinarianly considered activities peculiar to the practice of law, like
the drafting of legal documents and the rendering of legal opinion or advice,
such were isolated transactions or activities which do not qualify his past
endeavors as "practice of law." To become engaged in the practice of law,
there must be a continuity, or a succession of acts. As observed by the
Solicitor General in People vs. Villanueva:4
Essentially, the word private practice of law implies that one must have
presented himself to be in the activeand continued practice of the legal
profession and that his professional services are available to the public for a
compensation, as a source of his livelihood or in consideration of his said
services.
ACCORDINGLY, my vote is to GRANT the petition and to declare
respondent Monsod as not qualified for the position of COMELEC Chairman
for not having engaged in the practice of law for at least ten (10) years prior
to his appointment to such position.
CRUZ, J., dissenting:
I am sincerely impressed by the ponencia of my brother Paras but find I
must dissent just the same. There are certain points on which I must differ
with him while of course respecting hisviewpoint.
To begin with, I do not think we are inhibited from examining the
qualifications of the respondent simply because his nomination has been
confirmed by the Commission on Appointments. In my view, this is not a
political question that we are barred from resolving. Determination of the
appointee's credentials is made on the basis of the established facts, not
the discretion of that body. Even if it were, the exercise of that discretion
would still be subject to our review.
In Luego, which is cited in the ponencia, what was involved was the
discretion of the appointing authority to choosebetween two claimants to the
same office who both possessed the required qualifications. It was that kind
of discretion that we said could not be reviewed.
If a person elected by no less than the sovereign people may be ousted by
this Court for lack of the required qualifications, I see no reason why we
cannot disqualified an appointee simply because he has passed the
Commission on Appointments.
Even the President of the Philippines may be declared ineligible by this
Court in an appropriate proceeding notwithstanding that he has been found
acceptable by no less than the enfranchised citizenry. The reason is that
what we would be examining is not the wisdom of his election but whether
or not he was qualified to be elected in the first place.
Coming now to the qualifications of the private respondent, I fear that
the ponencia may have been too sweeping in its definition of the phrase
"practice of law" as to render the qualification practically toothless. From the
numerous activities accepted as embraced in the term, I have the
uncomfortable feeling that one does not even have to be a lawyer to be
engaged in the practice of law as long as his activities involve the
application of some law, however peripherally. The stock broker and the
insurance adjuster and the realtor could come under the definition as they
deal with or give advice on matters that are likely "to become involved in
litigation."
The lawyer is considered engaged in the practice of law even if his main
occupation is another business and he interprets and applies some law only
as an incident of such business. That covers every company organized
under the Corporation Code and regulated by the SEC under P.D. 902-A.
Considering the ramifications of the modern society, there is hardly any
activity that is not affected by some law or government regulation the
businessman must know about and observe. In fact, again going by the
definition, a lawyer does not even have to be part of a business concern to
be considered a practitioner. He can be so deemed when, on his own, he
rents a house or buys a car or consults a doctor as these acts involve his
knowledge and application of the laws regulating such transactions. If he
operates a public utility vehicle as his main source of livelihood, he would
still be deemed engaged in the practice of law because he must obey the
Public Service Act and the rules and regulations of the Energy Regulatory
Board.
The ponencia quotes an American decision defining the practice of law as
the "performance of any acts ... in or out of court, commonly understood to
be the practice of law," which tells us absolutely nothing. The decision goes
on to say that "because lawyers perform almost every function known in the
commercial and governmental realm, such a definition would obviously be
too global to be workable."
The effect of the definition given in the ponencia is to consider virtually
every lawyer to be engaged in the practice of law even if he does not earn
his living, or at least part of it, as a lawyer. It is enough that his activities are
incidentally (even if only remotely) connected with some law, ordinance, or
regulation. The possible exception is the lawyer whose income is derived
from teaching ballroom dancing or escorting wrinkled ladies with pubescent
pretensions.
The respondent's credentials are impressive, to be sure, but they do not
persuade me that he has been engaged in the practice of law for ten years
as required by the Constitution. It is conceded that he has been engaged in
business and finance, in which areas he has distinguished himself, but as
an executive and economist and not as a practicing lawyer. The plain fact is
that he has occupied the various positions listed in his resume by virtue of
his experience and prestige as a businessman and not as an attorney-at-
law whose principal attention is focused on the law. Even if it be argued that
he was acting as a lawyer when he lobbied in Congress for agrarian and
urban reform, served in the NAMFREL and the Constitutional Commission
(together with non-lawyers like farmers and priests) and was a member of
the Davide Commission, he has not proved that his activities in these
capacities extended over the prescribed 10-year period of actual practice of
the law. He is doubtless eminently qualified for many other positions worthy
of his abundant talents but not as Chairman of the Commission on
Elections.
I have much admiration for respondent Monsod, no less than for Mr. Justice
Paras, but I must regretfully vote to grant the petition.
GUTIERREZ, JR., J., dissenting:
When this petition was filed, there was hope that engaging in the practice of
law as a qualification for public office would be settled one way or another in
fairly definitive terms. Unfortunately, this was not the result.
Of the fourteen (14) member Court, 5 are of the view that Mr. Christian
Monsod engaged in the practice of law (with one of these 5 leaving his vote
behind while on official leave but not expressing his clear stand on the
matter); 4 categorically stating that he did not practice law; 2 voting in the
result because there was no error so gross as to amount to grave abuse of
discretion; one of official leave with no instructions left behind on how he
viewed the issue; and 2 not taking part in the deliberations and the decision.
There are two key factors that make our task difficult. First is our reviewing
the work of a constitutional Commission on Appointments whose duty is
precisely to look into the qualifications of persons appointed to high office.
Even if the Commission errs, we have no power to set aside error. We can
look only into grave abuse of discretion or whimsically and arbitrariness.
Second is our belief that Mr. Monsod possesses superior qualifications in
terms of executive ability, proficiency in management, educational
background, experience in international banking and finance, and instant
recognition by the public. His integrity and competence are not questioned
by the petitioner. What is before us is 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.
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

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

I agree with the petitioner that based on the bio-data submitted by b. Dataprep, Philippines
respondent Monsod to the Commission on Appointments, the latter has not
been engaged in the practice of law for at least ten years. In fact, if appears c. Philippine SUNsystems Products, Inc.
that Mr. Monsod has never practiced law except for an alleged one year
period after passing the bar examinations when he worked in his father's
d. Semirara Coal Corporation
law firm. Even then his law practice must have been extremely limited
because he was also working for M.A. and Ph. D. degrees in Economics at
the University of Pennsylvania during that period. How could he practice law e. CBL Timber Corporation
in the United States while not a member of the Bar there?
Member of the Board of the Following:
The professional life of the respondent follows:
a. Engineering Construction Corporation of the Philippines
1.15.1. Respondent Monsod's activities since his passing the Bar
examinations in 1961 consist of the following: b. First Philippine Energy Corporation

1. 1961-1963: M.A. in Economics (Ph. D. candidate), University of c. First Philippine Holdings Corporation
Pennsylvania
d. First Philippine Industrial Corporation
e. Graphic Atelier
f. Manila Electric Company
g. Philippine Commercial Capital, Inc.
h. Philippine Electric Corporation
i. Tarlac Reforestation and Environment Enterprises
j. Tolong Aquaculture Corporation
k. Visayan Aquaculture Corporation
l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22)
There is nothing in the above bio-data which even remotely indicates that
respondent Monsod has given the lawenough attention or a certain degree
of commitment and participation as would support in all sincerity and candor
the claim of having engaged in its practice for at least ten years. Instead of
working as a lawyer, he has lawyers working for him. Instead of giving
receiving that legal advice of legal services, he was the oneadvice and
those services as an executive but not as a lawyer.
The deliberations before the Commission on Appointments show an effort to
equate "engaged in the practice of law" with the use of legal knowledge in
various fields of endeavor such as commerce, industry, civic work, blue
ribbon investigations, agrarian reform, etc. where such knowledge would be
helpful.
I regret that I cannot join in playing fast and loose with a term, which even
an ordinary layman accepts as having a familiar and customary well-defined
meaning. Every resident of this country who has reached the age of
discernment has to know, follow, or apply the law at various times in his life.
Legal knowledge is useful if not necessary for the business executive,
legislator, mayor, barangay captain, teacher, policeman, farmer, fisherman,
market vendor, and student to name only a few. And yet, can these people
honestly assert that as such, they are engaged in the practice of law?
The Constitution requires having been "engaged in the practice of law for at
least ten years." It is not satisfied with having been "a member of the
Philippine bar for at least ten years."
Some American courts have defined the practice of law, as follows:
The practice of law involves not only appearance in court in connection with
litigation but also services rendered out of court, and it includes the giving of
advice or the rendering of any services requiring the use of legal skill or
knowledge, such as preparing a will, contract or other instrument, the legal
effect of which, under the facts and conditions involved, must be carefully
determined. People ex rel. Chicago Bar Ass'n v. Tinkoff, 399 Ill. 282, 77
N.E.2d 693; People ex rel. Illinois State Bar Ass'n v. People's Stock Yards
State Bank, 344 Ill. 462,176 N.E. 901, and cases cited.
It would be difficult, if not impossible to lay down a formula or definition of
what constitutes the practice of law. "Practicing law" has been defined as
"Practicing as an attorney or counselor at law according to the laws and
customs of our courts, is the giving of advice or rendition of any sort of
service by any person, firm or corporation when the giving of such advice or
rendition of such service requires the use of any degree of legal knowledge
or skill." Without adopting that definition, we referred to it as being
substantially correct in People ex rel. Illinois State Bar Ass'n v. People's
Stock Yards State Bank, 344 Ill. 462,176 N.E. 901. (People v. Schafer, 87
N.E. 2d 773, 776)
For one's actions to come within the purview of practice of law they should
not only be activities peculiar to the work of a lawyer, they should also be
performed, habitually, frequently or customarily, to wit:
xxx xxx xxx
Respondent's answers to questions propounded to him were rather evasive.
He was asked whether or not he ever prepared contracts for the parties in
real-estate transactions where he was not the procuring agent. He
answered: "Very seldom." In answer to the question as to how many times
he had prepared contracts for the parties during the twenty-one years of his
business, he said: "I have no Idea." When asked if it would be more than
half a dozen times his answer was I suppose. Asked if he did not recall
making the statement to several parties that he had prepared contracts in a
large number of instances, he answered: "I don't recall exactly what was
said." When asked if he did not remember saying that he had made a
practice of preparing deeds, mortgages and contracts and charging a fee to
the parties therefor in instances where he was not the broker in the deal, he
answered: "Well, I don't believe so, that is not a practice." Pressed further
for an answer as to his practice in preparing contracts and deeds for parties
where he was not the broker, he finally answered: "I have done about
everything that is on the books as far as real estate is concerned."
xxx xxx xxx
Respondent takes the position that because he is a real-estate broker he
has a lawful right to do any legal work in connection with real-estate
transactions, especially in drawing of real-estate contracts, deeds,
mortgages, notes and the like. There is no doubt but that he has engaged in
these practices over the years and has charged for his services in that
connection. ... (People v. Schafer, 87 N.E. 2d 773)
xxx xxx xxx
... An attorney, in the most general sense, is a person designated or
employed by another to act in his stead; an agent; more especially, one of a
class of persons authorized to appear and act for suitors or defendants in
legal proceedings. Strictly, these professional persons are attorneys at law,
and non-professional agents are properly styled "attorney's in fact;" but the
single word is much used as meaning an attorney at law. A person may be
an attorney in facto for another, without being an attorney at law. Abb. Law
Dict. "Attorney." A public attorney, or attorney at law, says Webster, is an
officer of a court of law, legally qualified to prosecute and defend actions in
such court on the retainer of clients. "The principal duties of an attorney are
(1) to be true to the court and to his client; (2) to manage the business of his
client with care, skill, and integrity; (3) to keep his client informed as to the
state of his business; (4) to keep his secrets confided to him as such. ... His
rights are to be justly compensated for his services." Bouv. Law Dict. tit.
"Attorney." The transitive verb "practice," as defined by Webster, means 'to
do or perform frequently, customarily, or habitually; to perform by a
succession of acts, as, to practice gaming, ... to carry on in practice, or
repeated action; to apply, as a theory, to real life; to exercise, as a
profession, trade, art. etc.; as, to practice law or medicine,' etc...." (State v.
Bryan, S.E. 522, 523; Emphasis supplied)
In this jurisdiction, we have ruled that the practice of law denotes frequency
or a succession of acts. Thus, we stated in the case of People v. Villanueva
(14 SCRA 109 [1965]):
xxx xxx xxx
... Practice is more than an isolated appearance, for it consists in frequent or
customary actions, a succession of acts of the same kind. In other words, it
is frequent habitual exercise (State v. Cotner, 127, p. 1, 87 Kan. 864, 42
LRA, M.S. 768). Practice of law to fall within the prohibition of statute has
been interpreted as customarily or habitually holding one's self out to the
public, as a lawyer and demanding payment for such services. ... . (at p.
112)
It is to be noted that the Commission on Appointment itself
recognizes habituality as a required component of the meaning of practice
of law in a Memorandum prepared and issued by it, to wit:
l. Habituality. The term 'practice of law' implies customarilyor habitually
holding one's self out to the public as a lawyer (People v. Villanueva, 14
SCRA 109 citing State v. Bryan, 4 S.E. 522, 98 N.C. 644) such as when one
sends a circular announcing the establishment of a law office for the general
practice of law (U.S. v. Noy Bosque, 8 Phil. 146), or when one takes the
oath of office as a lawyer before a notary public, and files a manifestation
with the Supreme Court informing it of his intention to practice law in all
courts in the country (People v. De Luna, 102 Phil. 968).
Practice is more than an isolated appearance, for it consists in frequent or
customary action, a succession of acts of the same kind. In other words, it is
a habitual exercise (People v. Villanueva, 14 SCRA 1 09 citing State v.
Cotner, 1 27, p. 1, 87 Kan, 864)." (Rollo, p. 115)
xxx xxx xxx
While the career as a businessman of respondent Monsod may have
profited from his legal knowledge, the use of such legal knowledge is
incidental and consists of isolated activities which do not fall under the
denomination of practice of law. Admission to the practice of law was not
required for membership in the Constitutional Commission or in the Fact-
Finding Commission on the 1989 Coup Attempt. Any specific legal activities
which may have been assigned to Mr. Monsod while a member may be
likened to isolated transactions of foreign corporations in the Philippines
which do not categorize the foreign corporations as doing business in the
Philippines. As in the practice of law, doing business also should be active
and continuous. Isolated business transactions or occasional, incidental and
casual transactions are not within the context of doing business. This was
our ruling in the case of Antam Consolidated, Inc. v. Court of appeals, 143
SCRA 288 [1986]).
Respondent Monsod, corporate executive, civic leader, and member of the
Constitutional Commission may possess the background, competence,
integrity, and dedication, to qualify for such high offices as President, Vice-
President, Senator, Congressman or Governor but the Constitution in
prescribing the specific qualification of having engaged in the practice of law
for at least ten (10) years for the position of COMELEC Chairman has
ordered that he may not be confirmed for that office. The Constitution
charges the public respondents no less than this Court to obey its mandate.
I, therefore, believe that the Commission on Appointments committed grave
abuse of discretion in confirming the nomination of respondent Monsod as
Chairman of the COMELEC.
I vote to GRANT the petition.
Bidin, J., dissent
Separate Opinions
NARVASA, J., concurring:
I concur with the decision of the majority written by Mr. Justice Paras, albeit
only in the result; it does not appear to me that there has been an adequate
showing that the challenged determination by the Commission on
Appointments-that the appointment of respondent Monsod as Chairman of
the Commission on Elections should, on the basis of his stated
qualifications and after due assessment thereof, be confirmed-was attended
by error so gross as to amount to grave abuse of discretion and
consequently merits nullification by this Court in accordance with the second
paragraph of Section 1, Article VIII of the Constitution. I therefore vote to
DENY the petition.
Melencio-Herrera, J., concur.
PADILLA, J., dissenting:
The records of this case will show that when the Court first deliberated on
the Petition at bar, I voted not only to require the respondents to comment
on the Petition, but I was the sole vote for the issuance of a temporary
restraining order to enjoin respondent Monsod from assuming the position
of COMELEC Chairman, while the Court deliberated on his constitutional
qualification for the office. My purpose in voting for a TRO was to prevent
the inconvenience and even embarrassment to all parties concerned were
the Court to finally decide for respondent Monsod's disqualification.
Moreover, a reading of the Petition then in relation to established
jurisprudence already showed prima facie that respondent Monsod did not
possess the needed qualification, that is, he had not engaged in the practice
of law for at least ten (10) years prior to his appointment as COMELEC
Chairman.
After considering carefully respondent Monsod's comment, I am even more
convinced that the constitutional requirement of "practice of law for at least
ten (10) years" has not been met.
The procedural barriers interposed by respondents deserve scant
consideration because, ultimately, the core issue to be resolved in this
petition is the proper construal of the constitutional provision requiring a
majority of the membership of COMELEC, including the Chairman thereof to
"have been engaged in the practice of law for at least ten (10) years." (Art.
IX(C), Section 1(1), 1987 Constitution). Questions involving the construction
of constitutional provisions are best left to judicial resolution. As declared
in Angara v. Electoral Commission, (63 Phil. 139) "upon the judicial
department is thrown the solemn and inescapable obligation of interpreting
the Constitution and defining constitutional boundaries."
The Constitution has imposed clear and specific standards for a COMELEC
Chairman. Among these are that he must have been "engaged in the
practice of law for at least ten (10) years." It is the bounden duty of this
Court to ensure that such standard is met and complied with.
What constitutes practice of law? As commonly understood, "practice"
refers to the actual performance or application of knowledge as
distinguished from mere possession of knowledge; it connotes
an active, habitual, repeated or customary action.1 To "practice" law, or any
profession for that matter, means, to exercise or pursue an employment or
profession actively, habitually, repeatedly or customarily.
Therefore, a doctor of medicine who is employed and is habitually
performing the tasks of a nursing aide, cannot be said to be in the "practice
of medicine." A certified public accountant who works as a clerk, cannot be
said to practice his profession as an accountant. In the same way, a lawyer
who is employed as a business executive or a corporate manager, other
than as head or attorney of a Legal Department of a corporation or a
governmental agency, cannot be said to be in the practice of law.
As aptly held by this Court in the case of People vs. Villanueva:2
Practice is more than an isolated appearance for it consists in frequent or
customary actions, a succession of acts of the same kind. In other words, it
is frequent habitual exercise (State vs- Cotner, 127, p. 1, 87 Kan. 864, 42
LRA, M.S. 768). Practice of law to fall within the prohibition of statute has
been interpreted as customarily or habitually holding one's self out to the
public as a lawyer and demanding payment for such services (State vs.
Bryan, 4 S.E. 522, 98 N.C. 644,647.) ... (emphasis supplied).
It is worth mentioning that the respondent Commission on Appointments in
a Memorandum it prepared, enumerated several factors determinative of
whether a particular activity constitutes "practice of law." It states:
1. Habituality. The term "practice of law" implies customarily or habitually
holding one's self out to the public as a lawyer (People vs. Villanueva, 14
SCRA 109 citing State v. Boyen, 4 S.E. 522, 98 N.C. 644) such as when
one sends a circular announcing the establishment of a law office for the
general practice of law (U.S. v. Ney Bosque, 8 Phil. 146), or when one takes
the oath of office as a lawyer before a notary public, and files a
manifestation with the Supreme Court informing it of his intention to practice
law in all courts in the country (People v. De Luna, 102 Phil. 968).
Practice is more than an isolated appearance for it consists in frequent or
customary action, a succession of acts of the same kind. In other words, it is
a habitual exercise (People v. Villanueva, 14 SCRA 109 citing State v.
Cotner, 127, p. 1, 87 Kan, 864).
2. Compensation. Practice of law implies that one must have presented
himself to be in the active and continued practice of the legal profession and
that his professional services are available to the public for compensation,
as a service of his livelihood or in consideration of his said services. (People
v. Villanueva, supra). Hence, charging for services such as preparation of
documents involving the use of legal knowledge and skill is within the term
"practice of law" (Ernani Pao, Bar Reviewer in Legal and Judicial Ethics,
1988 ed., p. 8 citing People v. People's Stockyards State Bank, 176 N.B.
901) and, one who renders an opinion as to the proper interpretation of a
statute, and receives pay for it, is to that extent, practicing law
(Martin, supra, p. 806 citing Mendelaun v. Gilbert and Barket Mfg. Co., 290
N.Y.S. 462) If compensation is expected, all advice to clients and all action
taken for them in matters connected with the law; are practicing law.
(Elwood Fitchette et al., v. Arthur C. Taylor, 94A-L.R. 356-359)
3. Application of law legal principle practice or procedure which calls for
legal knowledge, training and experience is within the term "practice of law".
(Martin supra)
4. Attorney-client relationship. Engaging in the practice of law presupposes
the existence of lawyer-client relationship. Hence, where a lawyer
undertakes an activity which requires knowledge of law but involves no
attorney-client relationship, such as teaching law or writing law books or
articles, he cannot be said to be engaged in the practice of his profession or
a lawyer (Agpalo, Legal Ethics, 1989 ed., p. 30).3
The above-enumerated factors would, I believe, be useful aids in
determining whether or not respondent Monsod meets the constitutional
qualification of practice of law for at least ten (10) years at the time of his
appointment as COMELEC Chairman.
The following relevant questions may be asked:
1. Did respondent Monsod perform any of the tasks which are peculiar to
the practice of law?
2. Did respondent perform such tasks customarily or habitually?
3. Assuming that he performed any of such tasks habitually, did he do so
HABITUALLY FOR AT LEAST TEN (10) YEARS prior to his appointment as
COMELEC Chairman?
Given the employment or job history of respondent Monsod as appears from
the records, I am persuaded that if ever he did perform any of the tasks
which constitute the practice of law, he did not do so HABITUALLY for at
least ten (10) years prior to his appointment as COMELEC Chairman.
While it may be granted that he performed tasks and activities which could
be latitudinarianly considered activities peculiar to the practice of law, like
the drafting of legal documents and the rendering of legal opinion or advice,
such were isolated transactions or activities which do not qualify his past
endeavors as "practice of law." To become engaged in the practice of law,
there must be a continuity, or a succession of acts. As observed by the
Solicitor General in People vs. Villanueva:4
Essentially, the word private practice of law implies that one must have
presented himself to be in the activeand continued practice of the legal
profession and that his professional services are available to the public for a
compensation, as a source of his livelihood or in consideration of his said
services.
ACCORDINGLY, my vote is to GRANT the petition and to declare
respondent Monsod as not qualified for the position of COMELEC Chairman
for not having engaged in the practice of law for at least ten (10) years prior
to his appointment to such position.
CRUZ, J., dissenting:
I am sincerely impressed by the ponencia of my brother Paras but find I
must dissent just the same. There are certain points on which I must differ
with him while of course respecting hisviewpoint.
To begin with, I do not think we are inhibited from examining the
qualifications of the respondent simply because his nomination has been
confirmed by the Commission on Appointments. In my view, this is not a
political question that we are barred from resolving. Determination of the
appointee's credentials is made on the basis of the established facts, not
the discretion of that body. Even if it were, the exercise of that discretion
would still be subject to our review.
In Luego, which is cited in the ponencia, what was involved was the
discretion of the appointing authority to choosebetween two claimants to the
same office who both possessed the required qualifications. It was that kind
of discretion that we said could not be reviewed.
If a person elected by no less than the sovereign people may be ousted by
this Court for lack of the required qualifications, I see no reason why we
cannot disqualified an appointee simply because he has passed the
Commission on Appointments.
Even the President of the Philippines may be declared ineligible by this
Court in an appropriate proceeding notwithstanding that he has been found
acceptable by no less than the enfranchised citizenry. The reason is that
what we would be examining is not the wisdom of his election but whether
or not he was qualified to be elected in the first place.
Coming now to the qualifications of the private respondent, I fear that
the ponencia may have been too sweeping in its definition of the phrase
"practice of law" as to render the qualification practically toothless. From the
numerous activities accepted as embraced in the term, I have the
uncomfortable feeling that one does not even have to be a lawyer to be
engaged in the practice of law as long as his activities involve the
application of some law, however peripherally. The stock broker and the
insurance adjuster and the realtor could come under the definition as they
deal with or give advice on matters that are likely "to become involved in
litigation."
The lawyer is considered engaged in the practice of law even if his main
occupation is another business and he interprets and applies some law only
as an incident of such business. That covers every company organized
under the Corporation Code and regulated by the SEC under P.D. 902-A.
Considering the ramifications of the modern society, there is hardly any
activity that is not affected by some law or government regulation the
businessman must know about and observe. In fact, again going by the
definition, a lawyer does not even have to be part of a business concern to
be considered a practitioner. He can be so deemed when, on his own, he
rents a house or buys a car or consults a doctor as these acts involve his
knowledge and application of the laws regulating such transactions. If he
operates a public utility vehicle as his main source of livelihood, he would
still be deemed engaged in the practice of law because he must obey the
Public Service Act and the rules and regulations of the Energy Regulatory
Board.
The ponencia quotes an American decision defining the practice of law as
the "performance of any acts . . . in or out of court, commonly understood to
be the practice of law," which tells us absolutely nothing. The decision goes
on to say that "because lawyers perform almost every function known in the
commercial and governmental realm, such a definition would obviously be
too global to be workable."
The effect of the definition given in the ponencia is to consider virtually
every lawyer to be engaged in the practice of law even if he does not earn
his living, or at least part of it, as a lawyer. It is enough that his activities are
incidentally (even if only remotely) connected with some law, ordinance, or
regulation. The possible exception is the lawyer whose income is derived
from teaching ballroom dancing or escorting wrinkled ladies with pubescent
pretensions.
The respondent's credentials are impressive, to be sure, but they do not
persuade me that he has been engaged in the practice of law for ten years
as required by the Constitution. It is conceded that he has been engaged in
business and finance, in which areas he has distinguished himself, but as
an executive and economist and not as a practicing lawyer. The plain fact is
that he has occupied the various positions listed in his resume by virtue of
his experience and prestige as a businessman and not as an attorney-at-
law whose principal attention is focused on the law. Even if it be argued that
he was acting as a lawyer when he lobbied in Congress for agrarian and
urban reform, served in the NAMFREL and the Constitutional Commission
(together with non-lawyers like farmers and priests) and was a member of
the Davide Commission, he has not proved that his activities in these
capacities extended over the prescribed 10-year period of actual practice of
the law. He is doubtless eminently qualified for many other positions worthy
of his abundant talents but not as Chairman of the Commission on
Elections.
I have much admiration for respondent Monsod, no less than for Mr. Justice
Paras, but I must regretfully vote to grant the petition.
GUTIERREZ, JR., J., dissenting:
When this petition was filed, there was hope that engaging in the practice of
law as a qualification for public office would be settled one way or another in
fairly definitive terms. Unfortunately, this was not the result.
Of the fourteen (14) member Court, 5 are of the view that Mr. Christian
Monsod engaged in the practice of law (with one of these 5 leaving his vote
behind while on official leave but not expressing his clear stand on the
matter); 4 categorically stating that he did not practice law; 2 voting in the
result because there was no error so gross as to amount to grave abuse of
discretion; one of official leave with no instructions left behind on how he
viewed the issue; and 2 not taking part in the deliberations and the decision.
There are two key factors that make our task difficult. First is our reviewing
the work of a constitutional Commission on Appointments whose duty is
precisely to look into the qualifications of persons appointed to high office.
Even if the Commission errs, we have no power to set aside error. We can
look only into grave abuse of discretion or whimsically and arbitrariness.
Second is our belief that Mr. Monsod possesses superior qualifications in
terms of executive ability, proficiency in management, educational
background, experience in international banking and finance, and instant
recognition by the public. His integrity and competence are not questioned
by the petitioner. What is before us is compliance with a specific
requirement written into the Constitution.
Inspite of my high regard for Mr. Monsod, I cannot shirk my constitutional
duty. He has never engaged in the practice of law for even one year. He is a
member of the bar but to say that he has practiced law is stretching the term
beyond rational limits.
A person may have passed the bar examinations. But if he has not
dedicated his life to the law, if he has not engaged in an activity where
membership in the bar is a requirement I fail to see how he can claim to
have been engaged in the practice of law.
Engaging in the practice of law is a qualification not only for COMELEC
chairman but also for appointment to the Supreme Court and all lower
courts. What kind of Judges or Justices will we have if there main
occupation is selling real estate, managing a business corporation, serving
in fact-finding committee, working in media, or operating a farm with no
active involvement in the law, whether in Government or private practice,
except that in one joyful moment in the distant past, they happened to pass
the bar examinations?
The Constitution uses the phrase "engaged in the practice of law for at least
ten years." The deliberate choice of words shows that the practice
envisioned is active and regular, not isolated, occasional, accidental,
intermittent, incidental, seasonal, or extemporaneous. To be "engaged" in
an activity for ten years requires committed participation in something which
is the result of one's decisive choice. It means that one is occupied and
involved in the enterprise; one is obliged or pledged to carry it out with intent
and attention during the ten-year period.
I agree with the petitioner that based on the bio-data submitted by
respondent Monsod to the Commission on Appointments, the latter has not
been engaged in the practice of law for at least ten years. In fact, if appears
that Mr. Monsod has never practiced law except for an alleged one year
period after passing the bar examinations when he worked in his father's
law firm. Even then his law practice must have been extremely limited
because he was also working for M.A. and Ph. D. degrees in Economics at
the University of Pennsylvania during that period. How could he practice law
in the United States while not a member of the Bar there?
The professional life of the respondent follows:
1.15.1. Respondent Monsod's activities since his passing the Bar
examinations in 1961 consist of the following:
1. 1961-1963: M.A. in Economics (Ph. D. candidate), University of
Pennsylvania
2. 1963-1970: World Bank Group Economist, Industry Department;
Operations, Latin American Department; Division Chief, South Asia and
Middle East, International Finance Corporation
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 There is nothing in the above bio-data which even remotely indicates that
Attempt Member respondent Monsod has given the lawenough attention or a certain degree
of commitment and participation as would support in all sincerity and candor
9. Presently: Chairman of the Board and Chief Executive Officer of the the claim of having engaged in its practice for at least ten years. Instead of
following companies: working as a lawyer, he has lawyers working for him. Instead of giving
receiving that legal advice of legal services, he was the oneadvice and
those services as an executive but not as a lawyer.
a. ACE Container Philippines, Inc.

The deliberations before the Commission on Appointments show an effort to

b. Dataprep, Philippines
c. Philippine SUNsystems Products, Inc.
d. Semirara Coal Corporation
e. CBL Timber Corporation
Member of the Board of the Following:
a. Engineering Construction Corporation of the Philippines
b. First Philippine Energy Corporation
c. First Philippine Holdings Corporation
d. First Philippine Industrial Corporation
e. Graphic Atelier
f. Manila Electric Company
g. Philippine Commercial Capital, Inc.
h. Philippine Electric Corporation
i. Tarlac Reforestation and Environment Enterprises
equate "engaged in the practice of law" with the use of legal knowledge in
various fields of endeavor such as commerce, industry, civic work, blue
ribbon investigations, agrarian reform, etc. where such knowledge would be
helpful.
I regret that I cannot join in playing fast and loose with a term, which even
an ordinary layman accepts as having a familiar and customary well-defined
meaning. Every resident of this country who has reached the age of
discernment has to know, follow, or apply the law at various times in his life.
Legal knowledge is useful if not necessary for the business executive,
legislator, mayor, barangay captain, teacher, policeman, farmer, fisherman,
market vendor, and student to name only a few. And yet, can these people
honestly assert that as such, they are engaged in the practice of law?
The Constitution requires having been "engaged in the practice of law for at
least ten years." It is not satisfied with having been "a member of the
Philippine bar for at least ten years."
Some American courts have defined the practice of law, as follows:
The practice of law involves not only appearance in court in connection with
litigation but also services rendered out of court, and it includes the giving of
advice or the rendering of any services requiring the use of legal skill or
knowledge, such as preparing a will, contract or other instrument, the legal
effect of which, under the facts and conditions involved, must be carefully
determined. People ex rel. Chicago Bar Ass'n v. Tinkoff, 399 Ill. 282, 77
N.E.2d 693; People ex rel. Illinois State Bar Ass'n v. People's Stock Yards
State Bank, 344 Ill. 462,176 N.E. 901, and cases cited.

j. Tolong Aquaculture Corporation It would be difficult, if not impossible to lay down a formula or definition of
what constitutes the practice of law. "Practicing law" has been defined as
"Practicing as an attorney or counselor at law according to the laws and
k. Visayan Aquaculture Corporation customs of our courts, is the giving of advice or rendition of any sort of
service by any person, firm or corporation when the giving of such advice or
l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22) rendition of such service requires the use of any degree of legal knowledge
or skill." Without adopting that definition, we referred to it as being
substantially correct in People ex rel. Illinois State Bar Ass'n v. People's
Stock Yards State Bank, 344 Ill. 462,176 N.E. 901. (People v. Schafer, 87
N.E. 2d 773, 776)
For one's actions to come within the purview of practice of law they should
not only be activities peculiar to the work of a lawyer, they should also be
performed, habitually, frequently or customarily, to wit:
xxx xxx xxx
Respondent's answers to questions propounded to him were rather evasive.
He was asked whether or not he ever prepared contracts for the parties in
real-estate transactions where he was not the procuring agent. He
answered: "Very seldom." In answer to the question as to how many times
he had prepared contracts for the parties during the twenty-one years of his
business, he said: "I have no Idea." When asked if it would be more than
half a dozen times his answer was I suppose. Asked if he did not recall
making the statement to several parties that he had prepared contracts in a
large number of instances, he answered: "I don't recall exactly what was
said." When asked if he did not remember saying that he had made a
practice of preparing deeds, mortgages and contracts and charging a fee to
the parties therefor in instances where he was not the broker in the deal, he
answered: "Well, I don't believe so, that is not a practice." Pressed further
for an answer as to his practice in preparing contracts and deeds for parties
where he was not the broker, he finally answered: "I have done about
everything that is on the books as far as real estate is concerned."
xxx xxx xxx
Respondent takes the position that because he is a real-estate broker he
has a lawful right to do any legal work in connection with real-estate
transactions, especially in drawing of real-estate contracts, deeds,
mortgages, notes and the like. There is no doubt but that he has engaged in
these practices over the years and has charged for his services in that
connection. ... (People v. Schafer, 87 N.E. 2d 773)
xxx xxx xxx
... An attorney, in the most general sense, is a person designated or
employed by another to act in his stead; an agent; more especially, one of a
class of persons authorized to appear and act for suitors or defendants in
legal proceedings. Strictly, these professional persons are attorneys at law,
and non-professional agents are properly styled "attorney's in fact;" but the
single word is much used as meaning an attorney at law. A person may be
an attorney in facto for another, without being an attorney at law. Abb. Law
Dict. "Attorney." A public attorney, or attorney at law, says Webster, is an
officer of a court of law, legally qualified to prosecute and defend actions in
such court on the retainer of clients. "The principal duties of an attorney are
(1) to be true to the court and to his client; (2) to manage the business of his
client with care, skill, and integrity; (3) to keep his client informed as to the
state of his business; (4) to keep his secrets confided to him as such. ... His
rights are to be justly compensated for his services." Bouv. Law Dict. tit.
"Attorney." The transitive verb "practice," as defined by Webster, means 'to
do or perform frequently, customarily, or habitually; to perform by a
succession of acts, as, to practice gaming, ... to carry on in practice, or
repeated action; to apply, as a theory, to real life; to exercise, as a
profession, trade, art. etc.; as, to practice law or medicine,' etc...." (State v.
Bryan, S.E. 522, 523; Emphasis supplied)
In this jurisdiction, we have ruled that the practice of law denotes frequency
or a succession of acts. Thus, we stated in the case of People v. Villanueva
(14 SCRA 109 [1965]):
xxx xxx xxx
... Practice is more than an isolated appearance, for it consists in frequent or
customary actions, a succession of acts of the same kind. In other words, it
is frequent habitual exercise (State v. Cotner, 127, p. 1, 87 Kan. 864, 42
LRA, M.S. 768). Practice of law to fall within the prohibition of statute has
been interpreted as customarily or habitually holding one's self out to the
public, as a lawyer and demanding payment for such services. ... . (at p.
112)
It is to be noted that the Commission on Appointment itself
recognizes habituality as a required component of the meaning of practice
of law in a Memorandum prepared and issued by it, to wit:
l. Habituality. The term 'practice of law' implies customarilyor habitually
holding one's self out to the public as a lawyer (People v. Villanueva, 14
SCRA 109 citing State v. Bryan, 4 S.E. 522, 98 N.C. 644) such as when one
sends a circular announcing the establishment of a law office for the general
practice of law (U.S. v. Noy Bosque, 8 Phil. 146), or when one takes the
oath of office as a lawyer before a notary public, and files a manifestation
with the Supreme Court informing it of his intention to practice law in all
courts in the country (People v. De Luna, 102 Phil. 968).
Practice is more than an isolated appearance, for it consists in frequent or
customary action, a succession of acts of the same kind. In other words, it is
a habitual exercise (People v. Villanueva, 14 SCRA 1 09 citing State v.
Cotner, 1 27, p. 1, 87 Kan, 864)." (Rollo, p. 115)
xxx xxx xxx

While the career as a businessman of respondent Monsod may have

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

Respondent Monsod, corporate executive, civic leader, and member of the

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

I, therefore, believe that the Commission on Appointments committed grave

abuse of discretion in confirming the nomination of respondent Monsod as
Chairman of the COMELEC.

I vote to GRANT the petition.

Bidin, J., dissent