Leg Res Cases

8/13/2019 Leg Res Cases

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Republic of the PhilippinesSUPREME COURT

ManilaSECOND DIVISION

G.R. No. 100113 September 3, 1991RENATO CAYETANO, petitioner,vs.CHRISTIAN MONSOD, HON. JO ITO R. SA!ONGA, COMMISSION ON APPOINTMENT, "#$HON. GUI!!ERMO CARAGUE, %# &%' ("p"(%t) "' Se(ret"r) o* + $-et "#$M"#"-eme#t, respondents .Renato L. Cayetano for and in his own behalf.Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner. PARAS, J.: p

e are faced here !ith a controvers" of far#reachin$ proportions. hile ostensibl" onl" le$al issuesare involved, the Court%s decision in this case !ould indubitabl" have a profound effect on thepolitical aspect of our national e&istence.'he ()*+ Constitution provides in Section ( (-, rticle I/#C0

'here shall be a Co11ission on Elections co1posed of a Chair1an and si&Co11issioners !ho shall be natural#born citi2ens of the Philippines and, at the ti1eof their appoint1ent, at least thirt"#five "ears of a$e, holders of a colle$e de$ree, and1ust not have been candidates for an" elective position in the i11ediatel" precedin$#elections. 3o!ever, a 1a4orit" thereof, includin$ the Chair1an, shall be 1e1bers ofthe Philippine 5ar !ho have been en$a$ed in the practice of la! for at least ten"ears. E1phasis supplied-

'he afore6uoted provision is patterned after Section l l-, rticle /II#C of the ()+7 Constitution !hichsi1ilarl" provides0'here shall be an independent Co11ission on Elections co1posed of a Chair1an and ei$htCo11issioners !ho shall be natural#born citi2ens of the Philippines and, at the ti1e of theirappoint1ent, at least thirt"#five "ears of a$e and holders of a colle$e de$ree. 3o!ever, a 1a4orit"thereof, includin$ the Chair1an, shall be 1e1bers of the Philippine 5ar who ha e been en!a!ed inthe practice of law for at least ten years. % E1phasis supplied-Re$rettabl", ho!ever, there see1s to be no 4urisprudence as to !hat constitutes practice of la! as ale$al 6ualification to an appointive office.5lac8 defines 9practice of la!9 as0

'he rendition of services re6uirin$ the 8no!led$e and the application of le$alprinciples and techni6ue to serve the interest of another !ith his consent. It is notli1ited to appearin$ in court, or advisin$ and assistin$ in the conduct of liti$ation, bute1braces the preparation of pleadin$s, and other papers incident to actions andspecial proceedin$s, conve"ancin$, the preparation of le$al instru1ents of all 8inds,and the $ivin$ of all le$al advice to clients. It e1braces all advice to clients and allactions ta8en for the1 in 1atters connected !ith the la!. n attorne" en$a$es in the

practice of la! b" 1aintainin$ an office !here he is held out to be#an attorne", usin$a letterhead describin$ hi1self as an attorne", counselin$ clients in le$al 1atters,ne$otiatin$ !ith opposin$ counsel about pendin$ liti$ation, and fi&in$ and collectin$fees for services rendered b" his associate. "lac#$s Law %ictionary , 7rd ed.-

'he practice of la! is not li1ited to the conduct of cases in court. Land &itle Abstract and &rust Co.. %wor#en, (:) Ohio St. :7, ()7 N.E. ;


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representative capacit" as an advocate in proceedin$s pendin$ or prospective,before an" court, co11issioner, referee, board, bod", co11ittee, or co11issionconstituted b" la! or authori2ed to settle controversies and there, in suchrepresentative capacit" perfor1s an" act or acts for the purpose of obtainin$ ordefendin$ the ri$hts of their clients under the la!. Other!ise stated, one !ho, in arepresentative capacit", en$a$es in the business of advisin$ clients as to their ri$hts

under the la!, or !hile so en$a$ed perfor1s an" act or acts either in court or outsideof court for that purpose, is en$a$ed in the practice of la!. State e'. rel. Mc#ittric#..C.S. %udley and Co., (=: S. . :d *)= Mo. *>-.

E1phasis ours-'he niversit" of the Philippines a! Center in conductin$ orientation briefin$ for ne! la!"ers

()+>#()+


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acts !hich are characteristics of the profession. enerall", to practice la! is to $ive notice or renderan" 8ind of service, !hich device or service re6uires the use in an" de$ree of le$al 8no!led$e ors8ill.9 ((( R :7-'he follo!in$ records of the ()*; Constitutional Co11ission sho! that it has adopted a liberalinterpretation of the ter1 9practice of la!.9

MR. FOG. 5efore !e suspend the session, 1a" I 1a8e a1anifestation !hich I for$ot to do durin$ our revie! of the provisionson the Co11ission on udit. Ma" I be allo!ed to 1a8e a ver" briefstate1entH'3E PRESIDIN OFFICER Mr. @a1ir-.'he Co11issioner !ill please proceed.MR. FOG. &his has to do with the ualifications of the )e)bers of theCo))ission on Audit. A)on! others, the ualifications pro ided forby Section + is that &hey )ust be Me)bers of the (hilippine "ar / + a) uotin! fro) the pro ision / who ha e been en!a!ed in the

practice of law for at least ten years .'o avoid an" 1isunderstandin$ !hich !ould result in e&cludin$ 1e1bers of the 5ar!ho are no! e1plo"ed in the CO or Co11ission on udit, we would li#e to )a#e

the clarification that this pro ision on ualifications re!ardin! )e)bers of the "ardoes not necessarily refer or in ol e actual practice of law outside the C A 0e ha eto interpret this to )ean that as lon! as the lawyers who are e)ployed in the C Aare usin! their le!al #nowled!e or le!al talent in their respecti e wor# within C A,then they are ualified to be considered for appoint)ent as )e)bers orco))issioners, e en chair)an, of the Co))ission on Audit .'his has been discussed b" the Co11ittee on Constitutional Co11issions and

$encies and !e dee1 it i1portant to ta8e it up on the floor so that this interpretation1a" be 1ade available !henever this provision on the 6ualifications as re$ards1e1bers of the Philippine 5ar en$a$in$ in the practice of la! for at least ten "ears ista8en up.

MR. OP E. ill Co11issioner Fo2 "ield to 4ust one 6uestion.

MR. FOG. es, Mr. Presidin$ Officer.MR. OP E. +s he, in effect, sayin! that ser ice in the C A by alawyer is e ui alent to the re uire)ent of a law practice that is setforth in the Article on the Co))ission on Audit1MR. FOG. 0e )ust consider the fact that the wor# of C A, althou!hit is auditin!, will necessarily in ol e le!al wor#2 it will in ol e le!alwor#. And, therefore, lawyers who are e)ployed in C A now wouldha e the necessary ualifications in accordance with the (ro ision on

ualifications under our pro isions on the Co))ission on Audit. And,therefore, the answer is yes.MR. OP E. es. So that the construction $iven to this is that this ise6uivalent to the practice of la!.MR. FOG. 3es, Mr. (residin! fficer .MR. OP E. &han# you .... E1phasis supplied-

Section ( (-, rticle I/#D of the ()*+ Constitution, provides, a1on$ others, that the Chair1an andt!o Co11issioners of the Co11ission on udit CO - should either be certified public accountants!ith not less than ten "ears of auditin$ practice, or 1e1bers of the Philippine 5ar !ho have beenen$a$ed in the practice of law for at least ten "ears. e1phasis supplied-Corollar" to this is the ter1 9private practitioner9 and !hich is in 1an" !a"s s"non"1ous !ith the!ord 9la!"er.9 'oda", althou$h 1an" la!"ers do not en$a$e in private practice, it is still a fact that


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the 1a4orit" of la!"ers are private practitioners. ar" Munne8e, pportunities in Law Careers AV MCareer 3ori2ons0 IllinoisB, A()*;B, p. (-.In the course of a !or8in$ da" the avera$e $eneral practitioner !i$ en$a$e in a nu1ber of le$altas8s, each involvin$ different le$al doctrines, le$al s8ills, le$al processes, le$al institutions, clients,and other interested parties. Even the increasin$ nu1bers of la!"ers in speciali2ed practice !i$usuall" perfor1 at least so1e le$al services outside their specialt". nd even !ithin a narro!specialt" such as ta& practice, a la!"er !ill shift fro1 one le$al tas8 or role such as advice#$ivin$ toan i1portantl" different one such as representin$ a client before an ad1inistrative a$enc".

olfra1, supra , p. ;*+-.5" no 1eans !ill 1ost of this !or8 involve liti$ation, unless the la!"er is one of the relativel" raret"pes J a liti$ator !ho speciali2es in this !or8 to the e&clusion of 1uch else. Instead, the !or8 !ill

re6uire the la!"er to have 1astered the full ran$e of traditional la!"er s8ills of client counsellin$,advice#$ivin$, docu1ent draftin$, and ne$otiation. nd increasin$l" la!"ers find that the ne! s8ills of evaluation and 1ediation are both effective for 1an" clients and a source of e1plo"1ent. +bid .-.Most la!"ers !ill en$a$e in non#liti$ation le$al !or8 or in liti$ation !or8 that is constrained in ver"i1portant !a"s, at least theoreticall", so as to re1ove fro1 it so1e of the salient features ofadversarial liti$ation. Of these special roles, the 1ost pro1inent is that of prosecutor. In so1ela!"ers% !or8 the constraints are i1posed both b" the nature of the client and b" the !a" in !hichthe la!"er is or$ani2ed into a social unit to perfor1 that !or8. 'he 1ost co11on of these roles arethose of corporate practice and $overn1ent le$al service. +bid .-.


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In several issues of the "usiness Star , a business dail", herein belo! 6uoted are e1er$in$ trends incorporate la! practice, a departure fro1 the traditional concept of practice of la!.

e are e&periencin$ toda" !hat trul" 1a" be called a revolutionar" transfor1ation incorporate la! practice. a!"ers and other professional $roups, in particular those1e1bers participatin$ in various le$al#polic" decisional conte&ts, are findin$ thatunderstandin$ the 1a4or e1er$in$ trends in corporation la! is indispensable to

intelli$ent decision#1a8in$.Constructive ad4ust1ent to 1a4or corporate proble1s of toda" re6uires an accurateunderstandin$ of the nature and i1plications of the corporate la! research functionacco1panied b" an acceleratin$ rate of infor1ation accu1ulation. 'he reco$nition ofthe need for such i1proved corporate le$al polic" for1ulation, particularl" 91odel#1a8in$9 and 9contin$enc" plannin$,9 has i1pressed upon us the inade6uac" oftraditional procedures in 1an" decisional conte&ts.In a co1ple& le$al proble1 the 1ass of infor1ation to be processed, the sortin$ and!ei$hin$ of si$nificant conditional factors, the appraisal of 1a4or trends, thenecessit" of esti1atin$ the conse6uences of $iven courses of action, and the needfor fast decision and response in situations of acute dan$er have pro1pted the useof sophisticated concepts of infor1ation flo! theor", operational anal"sis, auto1atic

data processin$, and electronic co1putin$ e6uip1ent. nderstandabl", an i1proveddecisional structure 1ust stress the predictive co1ponent of the polic"#1a8in$process, !herein a 91odel9, of the decisional conte&t or a se$1ent thereof isdeveloped to test pro4ected alternative courses of action in ter1s of futuristic effectsflo!in$ therefro1.

lthou$h 1e1bers of the le$al profession are re$ularl" en$a$ed in predictin$ andpro4ectin$ the trends of the la!, the sub4ect of corporate finance la! has receivedrelativel" little or$ani2ed and for1ali2ed attention in the philosoph" of advancin$corporate le$al education. Nonetheless, a cross#disciplinar" approach to le$alresearch has beco1e a vital necessit".Certainl", the $eneral orientation for productive contributions b" those trainedpri1aril" in the la! can be i1proved throu$h an earl" introduction to 1ulti#variabledecisional conte&t and the various approaches for handlin$ such proble1s. a!"ers,particularl" !ith either a 1aster%s or doctorate de$ree in business ad1inistration or1ana$e1ent, functionin$ at the le$al polic" level of decision#1a8in$ no! have so1eappreciation for the concepts and anal"tical techni6ues of other professions !hichare currentl" en$a$ed in si1ilar t"pes of co1ple& decision#1a8in$.'ruth to tell, 1an" situations involvin$ corporate finance proble1s !ould re6uire theservices of an astute attorne" because of the co1ple& le$al i1plications that arisefro1 each and ever" necessar" step in securin$ and 1aintainin$ the business issueraised. "usiness Star , 9Corporate Finance a!,9 @an. ((, ()*), p. >-.In our liti$ation#prone countr", a corporate la!"er is assiduousl" referred to as the9abo$ado de ca1panilla.9 3e is the 9bi$#ti1e9 la!"er, earnin$ bi$ 1one" and !ith aclientele co1posed of the t"coons and 1a$nates of business and industr".Despite the $ro!in$ nu1ber of corporate la!"ers, 1an" people could not e&plain

!hat it is that a corporate la!"er does. For one, the nu1ber of attorne"s e1plo"edb" a sin$le corporation !ill var" !ith the si2e and t"pe of the corporation. Man"s1aller and so1e lar$e corporations far1 out all their le$al proble1s to private la!fir1s. Man" others have in#house counsel onl" for certain 1atters. Other corporationhave a staff lar$e enou$h to handle 1ost le$al proble1s in#house.

corporate la!"er, for all intents and purposes, is a la!"er !ho handles the le$alaffairs of a corporation. 3is areas of concern or 4urisdiction 1a" include, inter alia 0corporate le$al research, ta& la!s research, actin$ out as corporate secretar" inboard 1eetin$s-, appearances in both courts and other ad4udicator" a$encies


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includin$ the Securities and E&chan$e Co11ission-, and in other capacities !hichre6uire an abilit" to deal !ith the la!.

t an" rate, a corporate la!"er 1a" assu1e responsibilities other than the le$alaffairs of the business of the corporation he is representin$. &hese include such)atters as deter)inin! policy and beco)in! in ol ed in )ana!e)ent . E1phasissupplied.-

In a bi$ co1pan", for e&a1ple, one 1a" have a feelin$ of bein$ isolated fro1 theaction, or not understandin$ ho! one%s !or8 actuall" fits into the !or8 of theor$arni2ation. 'his can be frustratin$ to so1eone !ho needs to see the results of his!or8 first hand. In short, a corporate la!"er is so1eti1es offered this fortune to be1ore closel" involved in the runnin$ of the business.Moreover, a corporate la!"er%s services 1a" so1eti1es be en$a$ed b" a1ultinational corporation MNC-. So1e lar$e MNCs provide one of the fe!opportunities available to corporate la!"ers to enter the international la! field. fterall, international la! is practiced in a relativel" s1all nu1ber of co1panies and la!fir1s. 5ecause !or8in$ in a forei$n countr" is perceived b" 1an" as $la1orous, tillsis an area coveted b" corporate la!"ers. In 1ost cases, ho!ever, the overseas 4obs$o to e&perienced attorne"s !hile the "oun$er attorne"s do their 9international

practice9 in la! libraries. "usiness Star , 9Corporate a! Practice,9 Ma" :-.'his brin$s us to the inevitable, i.e., the role of the la!"er in the real1 of finance. 'oborro! the lines of 3arvard#educated la!"er 5ruce assertein, to !it0 9 bad la!"eris one !ho fails to spot proble1s, a $ood la!"er is one !ho perceives the difficulties,and the e&cellent la!"er is one !ho sur1ounts the1.9 "usiness Star , 9CorporateFinance a!,9 @an. ((, ()*), p. >-.'oda", the stud" of corporate la! practice direl" needs a 9shot in the ar1,9 so tospea8. No lon$er are !e tal8in$ of the traditional la! teachin$ 1ethod of confinin$the sub4ect stud" to the Corporation Code and the Securities Code but an incursionas !ell into the intert!inin$ 1odern 1ana$e1ent issues.Such corporate le$al 1ana$e1ent issues deal pri1aril" !ith three 7- t"pes oflearnin$0 (- ac6uisition of insi$hts into current advances !hich are of particularsi$nificance to the corporate counsel? :- an introduction to usable disciplinar" s8insapplicable to a corporate counsel%s 1ana$e1ent responsibilities? and 7- a devotionto the or$ani2ation and 1ana$e1ent of the le$al function itself.'hese three sub4ect areas 1a" be thou$ht of as intersectin$ circles, !ith a sharedarea lin8in$ the1. Other!ise 8no!n as 9intersectin$ 1ana$erial 4urisprudence,9 itfor1s a unif"in$ the1e for the corporate counsel%s total learnin$.So1e current advances in behavior and polic" sciences affect the counsel%s role. For that 1atter, the corporate la!"er revie!s the $lobali2ation process, includin$ theresultin$ strate$ic repositionin$ that the fir1s he provides counsel for are re6uired to1a8e, and the need to thin8 about a corporation%s? strate$" at 1ultiple levels. 'hesalience of the nation#state is bein$ reduced as fir1s deal both !ith $lobal1ultinational entities and si1ultaneousl" !ith sub#national $overn1ental units. Fir1s

increasin$l" collaborate not onl" !ith public entities but !ith each other J often !iththose !ho are co1petitors in other arenas. Also, the nature of the lawyer$s participation in decision-)a#in! within thecorporation is rapidly chan!in!. &he )ode) corporate lawyer has !ained a new roleas a sta#eholder / in so)e cases participatin! in the or!ani5ation and operations of !o ernance throu!h participation on boards and other decision-)a#in! roles . Oftenthese ne! patterns develop alon$side e&istin$ le$al institutions and la!s areperceived as barriers. 'hese trends are co1plicated as corporations or$ani2e for$lobal operations. E1phasis supplied-


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&he practisin! lawyer of today is fa)iliar as well with !o ern)ental policies towardthe pro)otion and )ana!e)ent of technolo!y. 6ew collaborati e arran!e)ents for

pro)otin! specific technolo!ies or co)petiti eness )ore !enerally re uireapproaches fro) industry that differ fro) older, )ore ad ersarial relationships andtraditional for)s of see#in! to influence !o ern)ental policies . nd there are lessonsto be learned fro1 other countries. In Europe, Esprit , Eure#a and Race are e&a1ples

of collaborative efforts bet!een $overn1ental and business @apan%s M+&+ is !orldfa1ous. E1phasis supplied-Follo!in$ the concept of boundar" spannin$, the office of the Corporate Counselco1prises a distinct $roup !ithin the 1ana$erial structure of all 8inds ofor$ani2ations. Effectiveness of both lon$#ter1 and te1porar" $roups !ithinor$ani2ations has been found to be related to indentifiable factors in the $roup#conte&t interaction such as the $roups activel" revisin$ their 8no!led$e of theenviron1ent coordinatin$ !or8 !ith outsiders, pro1otin$ tea1 achieve1ents !ithinthe or$ani2ation. In $eneral, such e&ternal activities are better predictors of tea1perfor1ance than internal $roup processes.+n a crisis situation, the le!al )ana!erial capabilities of the corporate lawyer is-a- isthe )ana!erial )ettle of corporations are challen!ed . Current research is see8in$!a"s both to anticipate effective 1ana$erial procedures and to understandrelationships of financial liabilit" and insurance considerations. E1phasis supplied-Re$ardin$ the s8ills to appl" b" the corporate counsel, three factors are apropos 07irst Syste) %yna)ics . 'he field of s"ste1s d"na1ics has been found an effectivetool for ne! 1ana$erial thin8in$ re$ardin$ both plannin$ and pressin$ i11ediateproble1s. n understandin$ of the role of feedbac8 loops, inventor" levels, and ratesof flo!, enable users to si1ulate all sorts of s"ste1atic proble1s J ph"sical,econo1ic, 1ana$erial, social, and ps"cholo$ical. 6ew pro!ra))in! techni ues now )a#e the syste) dyna)ics principles )ore accessible to )ana!ers / includin!corporate counsels . E1phasis supplied-Second %ecision Analysis. &his enables users to )a#e better decisions in ol in!co)ple'ity and uncertainty. +n the conte't of a law depart)ent, it can be used toappraise the settle)ent alue of liti!ation, aid in ne!otiation settle)ent, and )ini)i5ethe cost and ris# in ol ed in )ana!in! a portfolio of cases . E1phasis supplied-&hird Modelin! for 6e!otiation Mana!e)ent . Co1puter#based 1odels can be useddirectl" b" parties and 1ediators in all lands of ne$otiations. ll inte$rated set of suchtools provide coherent and effective ne$otiation support, includin$ hands#on oninstruction in these techni6ues. si1ulation case of an international 4oint venture1a" be used to illustrate the point.A5e this as it 1a",B the or$ani2ation and 1ana$e1ent of the le$al function, concernthree pointed areas of consideration, thus0(re enti e Lawyerin! . Plannin$ b" la!"ers re6uires special s8ills that co1prise a1a4or part of the $eneral counsel%s responsibilities. 'he" differ fro1 those of re1edialla!. Preventive la!"erin$ is concerned !ith 1ini1i2in$ the ris8s of le$al trouble and1a&i1i2in$ le$al ri$hts for such le$al entities at that ti1e !hen transactional or

si1ilar facts are bein$ considered and 1ade.Mana!erial Jurisprudence . 'his is the fra1e!or8 !ithin !hich are underta8en thoseactivities of the fir1 to !hich le$al conse6uences attach. It needs to be directl"supportive of this nation%s evolvin$ econo1ic and or$ani2ational fabric as fir1schan$e to sta" co1petitive in a $lobal, interdependent environ1ent. 'he practice andtheor" of 9la!9 is not ade6uate toda" to facilitate the relationships needed in tr"in$ to1a8e a $lobal econo1" !or8.

r!ani5ation and 7unctionin! of the Corporate Counsel$s ffice . 'he $eneral counselhas e1er$ed in the last decade as one of the 1ost vibrant subsets of the le$al


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profession. 'he corporate counsel hear responsibilit" for 8e" aspects of the fir1%sstrate$ic issues, includin$ structurin$ its $lobal operations, 1ana$in$ i1provedrelationships !ith an increasin$l" diversified bod" of e1plo"ees, 1ana$in$ e&pandedliabilit" e&posure, creatin$ ne! and varied interactions !ith public decision#1a8ers,copin$ internall" !ith 1ore co1ple& 1a8e or b" decisions.'his !hole e&ercise drives ho1e the thesis that 8no!in$ corporate la! is not enou$h

to 1a8e one a $ood $eneral corporate counsel nor to $ive hi1 a full sense of ho!the le$al s"ste1 shapes corporate activities. nd even if the corporate la!"er%s ai1is not the understand all of the la!%s effects on corporate activities, he 1ust, at thever" least, also $ain a !or8in$ 8no!led$e of the 1ana$e1ent issues if onl" to beable to $rasp not onl" the basic le$al 9constitution% or 1a8eup of the 1ode1corporation. 9 "usiness Star 9, 9'he Corporate Counsel,9 pril (=, ())(, p. >-.'he challen$e for la!"ers both of the bar and the bench- is to have 1ore than apassin$ 8no!led$e of financial la! affectin$ each aspect of their !or8. et, 1an"!ould ad1it to i$norance of vast tracts of the financial la! territor". hat transpiresne&t is a dile11a of professional securit"0 ill the la!"er ad1it i$norance and ris8opprobriu1H? or !ill he fei$n understandin$ and ris8 e&posureH "usiness Star ,9Corporate Finance la!,9 @an. ((, ()*), p. >-.

Respondent Christian Monsod !as no1inated b" President Cora2on C. 6uino to the position ofChair1an of the COME EC in a letter received b" the Secretariat of the Co11ission on ppoint1ents on pril :


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reconcile !o ern)ent functions with indi idual freedo)s and public accountability and the party-listsyste) for the ouse of Representati e. ?pp. 9 =-9 : Rollo@ ? E)phasis supplied@@ust a !ord about the wor# of a ne!otiatin! tea) of !hich tt". Monsod used to be a 1e1ber.

In a loan a$ree1ent, for instance, a ne$otiatin$ panel acts as a tea1, and !hich isade6uatel" constituted to 1eet the various contin$encies that arise durin$ ane$otiation. 5esides top officials of the 5orro!er concerned, there are the le$alofficer such as the le$al counsel-, the finance 1ana$er, and an operationsofficer such as an official in ol ed in ne!otiatin! the contracts - !ho co1prise the1e1bers of the tea1. uiller1o V. Soliven, 9 oan Ne$otiatin$ Strate$ies forDevelopin$ Countr" 5orro!ers,9 Staff Paper No. :, Central 5an8 of the Philippines,Manila, ()*:, p. ((-. E1phasis supplied-

fter a fashion, the loan a$ree1ent is li8e a countr"%s Constitution? it la"s do!n thela! as far as the loan transaction is concerned. 'hus, the 1eat of an" oan

$ree1ent can be co1part1entali2ed into five - covenants? and


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of both the rich and the poor / erily )ore than satisfy the constitutional re uire)ent / that he hasbeen en!a!ed in the practice of law for at least ten years .5esides in the leadin$ case of Lue!o . Ci il Ser ice Co))ission, (>7 SCR 7:+, the Court said0

Appoint)ent is an essentially discretionary power and 1ust be perfor1ed b" theofficer in !hich it is vested accordin$ to his best li$hts, the onl" condition bein$ thatthe appointee should possess the 6ualifications re6uired b" la!. If he does, then theappoint1ent cannot be faulted on the $round that there are others better 6ualified!ho should have been preferred. &his is a political uestion in ol in! considerationsof wisdo) which only the appointin! authority can decide . e1phasis supplied-

No less e1phatic !as the Court in the case of Central "an# . Ci il Ser ice Co))ission , (+( SCR+>>- !here it stated0

It is !ell#settled that !hen the appointee is 6ualified, as in this case, and all the otherle$al re6uire1ents are satisfied, the Co11ission has no alternative but to attest tothe appoint1ent in accordance !ith the Civil Service a!. 'he Co11ission has noauthorit" to revo8e an appoint1ent on the $round that another person is 1ore6ualified for a particular position. It also has no authorit" to direct the appoint1ent ofa substitute of its choice. 'o do so !ould be an encroach)ent on the discretion

ested upon the appointin! authority. An appoint)ent is essentially within the

discretionary power of who)soe er it is ested, sub*ect to the only condition that theappointee should possess the ualifications re uired by law . E1phasis supplied-'he appointin$ process in a re$ular appoint1ent as in the case at bar, consists of four >- sta$es0 (-no1ination? :- confir1ation b" the Co11ission on ppoint1ents? 7- issuance of a co11ission inthe Philippines, upon sub1ission b" the Co11ission on ppoint1ents of its certificate ofconfir1ation, the President issues the per1anent appoint1ent? and >- acceptance e.$., oath#ta8in$,postin$ of bond, etc. . . . Lacson . Ro)ero , No. #7=*(, October (>, ()>)? on2ales, a! onPublic Officers, p. :==-'he po!er of the Co11ission on ppoint1ents to $ive its consent to the no1ination of Monsod asChair1an of the Co11ission on Elections is 1andated b" Section ( :- Sub# rticle C, rticle I/ ofthe Constitution !hich provides0

'he Chair1an and the Co11isioners shall be appointed b" the President !ith theconsent of the Co11ission on ppoint1ents for a ter1 of seven "ears !ithoutreappoint1ent. Of those first appointed, three Me1bers shall hold office for seven"ears, t!o Me1bers for five "ears, and the last Me1bers for three "ears, !ithoutreappoint1ent. ppoint1ent to an" vacanc" shall be onl" for the une&pired ter1 ofthe predecessor. In no case shall an" Me1ber be appointed or desi$nated in ate1porar" or actin$ capacit".

nent @ustice 'eodoro Padilla%s separate opinion, suffice it to sa" that his definition of the practice of la! is the traditional or stereot"ped notion of la! practice, asdistin$uished fro1 the )odern concept of the practice of law , !hich 1odernconnotation is e'actly what was intended by the e)inent fra)ers of the 9:=;Constitution. Moreover, @ustice Padilla%s definition !ould re6uire $enerall" a habitualla! practice, perhaps practised t!o or three ti1es a !ee8 and would outlaw sa", la!practice once or t!ice a "ear for ten consecutive "ears. Clearl", this is far fro1 the

constitutional intent.pon the other hand, the separate opinion of @ustice Isa$ani Cru2 states that in 1" !ritten opinion, I

1ade use of a definition of la! practice !hich reall" 1eans nothin$ because the definition sa"s thatla! practice 9 . . . is !hat people ordinaril" 1ean b" the practice of la!.9 'rue I cited the definition butonl" b" !a" of sarcas1 as evident fro1 1" state1ent that the definition of la! practice b"9traditional areas of la! practice is essentiall" tautolo!ous 9 or definin$ a phrase b" 1eans of thephrase itself that is bein$ defined.@ustice Cru2 $oes on to sa" in substance that since the la! covers al1ost all situations, 1ostindividuals, in 1a8in$ use of the la!, or in advisin$ others on !hat the la! 1eans, are actuall"


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practicin$ la!. In that sense, perhaps, but !e should not lose si$ht of the fact that Mr. Monsod is alawyer , a )e)ber of the (hilippine "ar , !ho has been practisin$ la! for over ten "ears. 'his isdifferent fro1 the acts of persons practisin$ la!, without first beco)in! lawyers .@ustice Cru2 also sa"s that the Supre1e Court can even dis6ualif" an elected President of thePhilippines, sa", on the $round that he lac8s one or 1ore 6ualifications. 'his 1atter, I $reatl" doubt.For one thin$, ho! can an action or petition be brou$ht a$ainst the PresidentH nd even assu1in$

that he is indeed dis6ualified, ho! can the action be entertained since he is the incu1bentPresidentH

e no! proceed0'he Co11ission on the basis of evidence sub1itted dolin$ the public hearin$s on Monsod%sconfir1ation, i1plicitl" deter1ined that he possessed the necessar" 6ualifications as re6uired b"la!. 'he 4ud$1ent rendered b" the Co11ission in the e&ercise of such an ac8no!led$ed po!er isbe"ond 4udicial interference e&cept onl" upon a clear sho!in$ of a $rave abuse of discretiona1ountin$ to lac8 or e&cess of 4urisdiction. rt. VIII, Sec. ( Constitution-. 'hus, onl" !here such$rave abuse of discretion is clearl" sho!n shall the Court interfere !ith the Co11ission%s 4ud$1ent.In the instant case, there is no occasion for the e&ercise of the Court%s corrective po!er, since noabuse, 1uch less a $rave abuse of discretion, that !ould a1ount to lac8 or e&cess of 4urisdictionand !ould !arrant the issuance of the !rits pra"ed, for has been clearl" sho!n.

dditionall", consider the follo!in$0(- If the Co11ission on ppoint1ents re*ects a no1inee b" the President, 1a" theSupre1e Court reverse the Co11ission, and thus in effect confir) the appoint1entHClearl", the ans!er is in the ne$ative.

:- In the sa1e vein, 1a" the Court re*ect the no1inee, !ho1 the Co11issionhas confir)ed H 'he ans!er is li8e!ise clear.

7- If the nited States Senate !hich is the confir1in$ bod" in the .S. Con$ress-decides to confir) a Presidential no1inee, it !ould be incredible that the .S.Supre1e Court !ould still re erse the .S. Senate.

Finall", one si$nificant le$al 1a&i1 is0e 1ust interpret not b" the letter that 8illeth, but b" the spirit that $iveth life.

'a8e this h"pothetical case of Sa1son and Delilah. Once, the procurator of @udea as8ed Delilah

!ho !as Sa1son%s beloved- for help in capturin$ Sa1son. Delilah a$reed on condition that JNo blade shall touch his s8in?No blood shall flo! fro1 his veins.

hen Sa1son his lon$ hair cut b" Delilah- !as captured, the procurator placed an iron rod burnin$!hite#hot t!o or three inches a!a" fro1 in front of Sa1son%s e"es. 'his blinded the 1an. ponhearin$ of !hat had happened to her beloved, Delilah !as beside herself !ith an$er, and fu1in$!ith ri$hteous fur", accused the procurator of rene$in$ on his !ord. 'he procurator cal1l" replied09Did an" blade touch his s8inH Did an" blood flo! fro1 his veinsH9 'he procurator !as clearl" rel"in$on the letter, not the spirit of the a$ree1ent.In vie! of the fore$oin$, this petition is hereb" DISMISSED.SO ORDERED.7ernan, C.J., GriBo-A uino and Medialdea, JJ., concur.

7eliciano, J., + certify that he oted to dis)iss the petition. ?7ernan, C.J.@Sar)iento, J., is on lea e.Re!alado, and %a ide, Jr., J., too# no part.

Sep"r"te Op%#%o#'


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NAR ASA, J., concurrin$0I concur !ith the decision of the 1a4orit" !ritten b" Mr. @ustice Paras, albeit onl" in the result? it doesnot appear to 1e that there has been an ade6uate sho!in$ that the challen$ed deter1ination b" theCo11ission on ppoint1ents#that the appoint1ent of respondent Monsod as Chair1an of theCo11ission on Elections should, on the basis of his stated 6ualifications and after due assess1entthereof, be confir1ed#!as attended b" error so $ross as to a1ount to $rave abuse of discretion and

conse6uentl" 1erits nullification b" this Court in accordance !ith the second para$raph of Section (, rticle VIII of the Constitution. I therefore vote to DEN the petition. PADI!!A, J., dissentin$0'he records of this case !ill sho! that !hen the Court first deliberated on the Petition at bar, I votednot onl" to re6uire the respondents to co11ent on the Petition, but I !as the sole vote for theissuance of a te1porar" restrainin$ order to en4oin respondent Monsod fro1 assu1in$ the positionof COME EC Chair1an, !hile the Court deliberated on his constitutional 6ualification for the office.M" purpose in votin$ for a 'RO !as to prevent the inconvenience and even e1barrass1ent to allparties concerned !ere the Court to finall" decide for respondent Monsod%s dis6ualification.Moreover, a readin$ of the Petition then in relation to established 4urisprudence alread"sho!ed pri)a facie that respondent Monsod did not possess the needed 6ualification, that is, he

had not en$a$ed in the practice of la! for at least ten (=- "ears prior to his appoint1ent asCOME EC Chair1an. fter considerin$ carefull" respondent Monsod%s co11ent, I a1 even 1ore convinced that theconstitutional re6uire1ent of 9 practice of law for at least ten ?9, >: R , M.S. +;*-. Practice ofla! to fall !ithin the prohibition of statute has been interpreted as custo1aril" orhabituall" holdin$ one%s self out to the public as a la!"er and de1andin$ pa"1ent for such services State vs. 5r"an, > S.E. >,;>+.- ... e1phasissupplied-.


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It is !orth 1entionin$ that the respondent Co11ission on ppoint1ents in a Me1orandu1 itprepared, enu1erated several factors deter1inative of !hether a particular activit" constitutes9practice of la!.9 It states0

(. abituality . 'he ter1 9practice of la!9 i1plies custo1aril" or habituall" holdin$one%s self out to the public as a la!"er People vs. Villanueva, (> SCR (=) citin$State v. 5o"en, > S.E. >- such as !hen one sends a circular

announcin$ the establish1ent of a la! office for the $eneral practice of la! .S. v.Ne" 5os6ue, * Phil. (>;-, or !hen one ta8es the oath of office as a la!"er before anotar" public, and files a 1anifestation !ith the Supre1e Court infor1in$ it of hisintention to practice la! in all courts in the countr" People v. De una, (=: Phil.);*-.Practice is 1ore than an isolated appearance for it consists in fre6uent or custo1ar"action, a succession of acts of the sa1e 8ind. In other !ords, it is a habitual e&ercise

People v. Villanueva, (> SCR (=) citin$ State v. Cotner, (:+, p. (, *+ an, *;>-.:. Co)pensation . Practice of la! i1plies that one 1ust have presented hi1self to bein the active and continued practice of the le$al profession and that his professionalservices are available to the public for co1pensation, as a service of his livelihood orin consideration of his said services. People v. Villanueva, supra-. 3ence, char$in$

for services such as preparation of docu1ents involvin$ the use of le$al 8no!led$eand s8ill is !ithin the ter1 9practice of la!9 Ernani Pa o, 5ar Revie!er in e$al and@udicial Ethics, ()** ed., p. * citin$ People v. People%s Stoc8"ards State 5an8, (+;N.5. )=(- and, one !ho renders an opinion as to the proper interpretation of astatute, and receives pa" for it, is to that e&tent, practicin$ la! Martin, supra , p. *=;citin$ Mendelaun v. ilbert and 5ar8et Mf$. Co., :)= N. .S. >;:- If co1pensation ise&pected, all advice to clients and all action ta8en for the1 in 1atters connected !iththe la!? are practicin$ la!. El!ood Fitchette et al., v. rthur C. 'a"lor, )> # .R. 7


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professional services are available to the public for a co1pensation, as a source ofhis livelihood or in consideration of his said services.

CCORDIN , 1" vote is to R N' the petition and to declare respondent Monsod as not6ualified for the position of COME EC Chair1an for not havin$ en$a$ed in the practice of la! for atleast ten (=- "ears prior to his appoint1ent to such position.CRU , J., dissentin$0I a1 sincerel" i1pressed b" the ponencia of 1" brother Paras but find I 1ust dissent 4ust the sa1e.'here are certain points on !hich I 1ust differ !ith hi1 !hile of course respectin$ hisvie!point.'o be$in !ith, I do not thin8 !e are inhibited fro1 e&a1inin$ the 6ualifications of the respondentsi1pl" because his no1ination has been confir1ed b" the Co11ission on ppoint1ents. In 1"vie!, this is not a political 6uestion that !e are barred fro1 resolvin$. Deter1ination of theappointee%s credentials is 1ade on the basis of the established facts, not the discretion of that bod".Even if it !ere, the e&ercise of that discretion !ould still be sub4ect to our revie!.In Lue!o , !hich is cited in the ponencia , !hat !as involved !as the discretion of the appointin$authorit" to choose bet!een t!o clai1ants to the sa1e office !ho both possessed the re6uired6ualifications. It !as that 8ind of discretion that !e said could not be revie!ed.If a person elected b" no less than the soverei$n people 1a" be ousted b" this Court for lac8 of there6uired 6ualifications, I see no reason !h" !e cannot dis6ualified an appointee si1pl" because he

has passed the Co11ission on ppoint1ents.Even the President of the Philippines 1a" be declared ineli$ible b" this Court in an appropriateproceedin$ not!ithstandin$ that he has been found acceptable b" no less than the enfranchisedciti2enr". 'he reason is that !hat !e !ould be e&a1inin$ is not the wisdo) of his election but!hether or not he !as 6ualified to be elected in the first place.Co1in$ no! to the 6ualifications of the private respondent, I fear that the ponencia 1a" have beentoo s!eepin$ in its definition of the phrase 9practice of la!9 as to render the 6ualification practicall"toothless. Fro1 the nu1erous activities accepted as e1braced in the ter1, I have the unco1fortablefeelin$ that one does not even have to be a la!"er to be en$a$ed in the practice of la! as lon$ ashis activities involve the application of so1e la!, ho!ever peripherall". 'he stoc8 bro8er and theinsurance ad4uster and the realtor could co1e under the definition as the" deal !ith or $ive adviceon 1atters that are li8el" 9to beco1e involved in liti$ation.9

'he la!"er is considered en$a$ed in the practice of la! even if his 1ain occupation is anotherbusiness and he interprets and applies so1e la! onl" as an incident of such business. 'hat coversever" co1pan" or$ani2ed under the Corporation Code and re$ulated b" the SEC under P.D. )=:# .Considerin$ the ra1ifications of the 1odern societ", there is hardl" an" activit" that is not affected b"so1e la! or $overn1ent re$ulation the business1an 1ust 8no! about and observe. In fact, a$ain$oin$ b" the definition, a la!"er does not even have to be part of a business concern to beconsidered a practitioner. 3e can be so dee1ed !hen, on his o!n, he rents a house or bu"s a car or consults a doctor as these acts involve his 8no!led$e and application of the la!s re$ulatin$ suchtransactions. If he operates a public utilit" vehicle as his 1ain source of livelihood, he !ould still bedee1ed en$a$ed in the practice of la! because he 1ust obe" the Public Service ct and the rulesand re$ulations of the Ener$" Re$ulator" 5oard.'he ponencia 6uotes an 1erican decision definin$ the practice of la! as the 9perfor1ance of an"acts ... in or out of court, co11onl" understood to be the practice of la!,9 !hich tells us absolutel"nothin$. 'he decision $oes on to sa" that 9because la!"ers perfor1 al1ost ever" function 8no!n inthe co11ercial and $overn1ental real1, such a definition !ould obviousl" be too $lobal to be!or8able.9'he effect of the definition $iven in the ponencia is to consider virtuall" ever" la!"er to be en$a$edin the practice of la! even if he does not earn his livin$, or at least part of it, as a la!"er. It is enou$hthat his activities are incidentall" even if onl" re1otel"- connected !ith so1e la!, ordinance, orre$ulation. 'he possible e&ception is the la!"er !hose inco1e is derived fro1 teachin$ ballroo1dancin$ or escortin$ !rin8led ladies !ith pubescent pretensions.


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'he respondent%s credentials are i1pressive, to be sure, but the" do not persuade 1e that he hasbeen en$a$ed in the practice of la! for ten "ears as re6uired b" the Constitution. It is conceded thathe has been en$a$ed in business and finance, in !hich areas he has distin$uished hi1self, but asan e&ecutive and econo1ist and not as a practicin$ la!"er. 'he plain fact is that he has occupiedthe various positions listed in his resu1e b" virtue of his e&perience and presti$e as a business1anand not as an attorne"#at#la! !hose principal attention is focused on the la!. Even if it be ar$ued

that he !as actin$ as a la!"er !hen he lobbied in Con$ress for a$rarian and urban refor1, served inthe N MFRE and the Constitutional Co11ission to$ether !ith non#la!"ers li8e far1ers andpriests- and !as a 1e1ber of the Davide Co11ission, he has not proved that his activities in thesecapacities e&tended over the prescribed (=#"ear period of actual practice of the la!. 3e is doubtlesse1inentl" 6ualified for 1an" other positions !orth" of his abundant talents but not as Chair1an ofthe Co11ission on Elections.I have 1uch ad1iration for respondent Monsod, no less than for Mr. @ustice Paras, but I 1ustre$retfull" vote to $rant the petition.GUTIERRE , JR., J., dissentin$0

hen this petition !as filed, there !as hope that en$a$in$ in the practice of la! as a 6ualification for public office !ould be settled one !a" or another in fairl" definitive ter1s. nfortunatel", this !as notthe result.

Of the fourteen (>- 1e1ber Court, < are of the vie! that Mr. Christian Monsod en$a$ed in thepractice of la! !ith one of these < leavin$ his vote behind !hile on official leave but not e&pressin$his clear stand on the 1atter-? > cate$oricall" statin$ that he did not practice la!? : votin$ in theresult because there !as no error so $ross as to a1ount to $rave abuse of discretion? one of officialleave !ith no instructions left behind on ho! he vie!ed the issue? and : not ta8in$ part in thedeliberations and the decision.'here are t!o 8e" factors that 1a8e our tas8 difficult. First is our revie!in$ the !or8 of aconstitutional Co11ission on ppoint1ents !hose dut" is precisel" to loo8 into the 6ualifications ofpersons appointed to hi$h office. Even if the Co11ission errs, !e have no po!er to set aside error.

e can loo8 onl" into $rave abuse of discretion or !hi1sicall" and arbitrariness. Second is our belief that Mr. Monsod possesses superior 6ualifications in ter1s of e&ecutive abilit", proficienc" in1ana$e1ent, educational bac8$round, e&perience in international ban8in$ and finance, and instantreco$nition b" the public. 3is inte$rit" and co1petence are not 6uestioned b" the petitioner. hat isbefore us is co1pliance !ith a specific re6uire1ent !ritten into the Constitution.Inspite of 1" hi$h re$ard for Mr. Monsod, I cannot shir8 1" constitutional dut". 3e has neveren$a$ed in the practice of la! for even one "ear. 3e is a 1e1ber of the bar but to sa" that he haspracticed la! is stretchin$ the ter1 be"ond rational li1its.

person 1a" have passed the bar e&a1inations. "ut if he has not dedicated his life to the law, if hehas not en!a!ed in an acti ity where )e)bership in the bar is a re uire)ent I fail to see ho! he canclai1 to have been en$a$ed in the practice of la!.En$a$in$ in the practice of la! is a 6ualification not onl" for COME EC chair1an but also forappoint1ent to the Supre1e Court and all lo!er courts. hat 8ind of @ud$es or @ustices !ill !ehave if there 1ain occupation is sellin$ real estate, 1ana$in$ a business corporation, servin$ in fact#findin$ co11ittee, !or8in$ in 1edia, or operatin$ a far1 !ith no active involve1ent in the la!,!hether in overn1ent or private practice, e&cept that in one 4o"ful 1o1ent in the distant past, the"

happened to pass the bar e&a1inationsH'he Constitution uses the phrase 9en$a$ed in the practice of la! for at least ten "ears.9 'hedeliberate choice of !ords sho!s that the practice envisioned is active and re$ular, not isolated,occasional, accidental, inter1ittent, incidental, seasonal, or e&te1poraneous. 'o be 9en$a$ed9 in anactivit" for ten "ears re6uires co11itted participation in so1ethin$ !hich is the result of one%sdecisive choice. It 1eans that one is occupied and involved in the enterprise? one is obli$ed orpled$ed to carr" it out !ith intent and attention durin$ the ten#"ear period.I a$ree !ith the petitioner that based on the bio#data sub1itted b" respondent Monsod to theCo11ission on ppoint1ents, the latter has not been en$a$ed in the practice of la! for at least ten


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"ears. In fact, if appears that Mr. Monsod has never practiced la! e&cept for an alle$ed one "earperiod after passin$ the bar e&a1inations !hen he !or8ed in his father%s la! fir1. Even then his la!practice 1ust have been e&tre1el" li1ited because he !as also !or8in$ for M. . and Ph. D.de$rees in Econo1ics at the niversit" of Penns"lvania durin$ that period. 3o! could he practicela! in the nited States !hile not a 1e1ber of the 5ar thereH'he professional life of the respondent follo!s0

(.(


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industr", civic !or8, blue ribbon investi$ations, a$rarian refor1, etc. !here such 8no!led$e !ould behelpful.I re$ret that I cannot 4oin in pla"in$ fast and loose !ith a ter1, !hich even an ordinar" la"1anaccepts as havin$ a fa1iliar and custo1ar" !ell#defined 1eanin$. Ever" resident of this countr" !hohas reached the a$e of discern1ent has to 8no!, follo!, or appl" the la! at various ti1es in his life.

e$al 8no!led$e is useful if not necessar" for the business e&ecutive, le$islator, 1a"or, baran$a"

captain, teacher, police1an, far1er, fisher1an, 1ar8et vendor, and student to na1e onl" a fe!. nd"et, can these people honestl" assert that as such, the" are en$a$ed in the practice of la!H'he Constitution re6uires havin$ been 9en$a$ed in the practice of la! for at least ten "ears.9 It is notsatisfied !ith havin$ been 9a 1e1ber of the Philippine bar for at least ten "ears.9So1e 1erican courts have defined the practice of la!, as follo!s0

'he practice of la! involves not onl" appearance in court in connection !ith liti$ationbut also services rendered out of court, and it includes the $ivin$ of advice or therenderin$ of an" services re6uirin$ the use of le$al s8ill or 8no!led$e, such aspreparin$ a !ill, contract or other instru1ent, the le$al effect of !hich, under the factsand conditions involved, 1ust be carefull" deter1ined. (eople e' rel. Chica!o "ar

Ass$n . &in#off , 7)) Ill. :*:, ++ N.E.:d ;)7? (eople e' rel. +llinois State "ar Ass$n .(eople$s Stoc# 3ards State "an# , 7>> Ill. >;:,(+; N.E. )=(, and cases cited.

It !ould be difficult, if not i1possible to la" do!n a for1ula or definition of !hatconstitutes the practice of la!. 9Practicin$ la!9 has been defined as 9Practicin$ as anattorne" or counselor at la! accordin$ to the la!s and custo1s of our courts, is the$ivin$ of advice or rendition of an" sort of service b" an" person, fir1 or corporation!hen the $ivin$ of such advice or rendition of such service re6uires the use of an"de$ree of le$al 8no!led$e or s8ill.9 ithout adoptin$ that definition, !e referred to itas bein$ substantiall" correct in (eople e' rel. +llinois State "ar Ass$n . (eople$sStoc# 3ards State "an# , 7>> Ill. >;:,(+; N.E. )=(. People v. Schafer, *+ N.E. :d++7, ++;-

For one%s actions to co1e !ithin the purvie! of practice of law the" should not onl" be activitiespeculiar to the !or8 of a la!"er, the" should also be perfor1ed, habituall", fre6uentl" or custo1aril",to !it0

&&& &&& &&&Respondent%s ans!ers to 6uestions propounded to hi1 !ere rather evasive. 3e !asas8ed !hether or not he ever prepared contracts for the parties in real#estatetransactions !here he !as not the procurin$ a$ent. 3e ans!ered0 9Ver" seldo1.9 Inans!er to the 6uestion as to ho! 1an" ti1es he had prepared contracts for theparties durin$ the t!ent"#one "ears of his business, he said0 9I have no Idea.9 henas8ed if it !ould be 1ore than half a do2en ti1es his ans!er !as I suppose. s8ed if he did not recall 1a8in$ the state1ent to several parties that he had preparedcontracts in a lar$e nu1ber of instances, he ans!ered0 9I don%t recall e&actl" !hat!as said.9 hen as8ed if he did not re1e1ber sa"in$ that he had 1ade a practice of preparin$ deeds, 1ort$a$es and contracts and char$in$ a fee to the parties thereforin instances !here he !as not the bro8er in the deal, he ans!ered0 9 ell, I don%tbelieve so, that is not a practice.9 Pressed further for an ans!er as to his practice in

preparin$ contracts and deeds for parties !here he !as not the bro8er, he finall"ans!ered0 9I have done about ever"thin$ that is on the boo8s as far as real estate isconcerned.9&&& &&& &&&Respondent ta8es the position that because he is a real#estate bro8er he has ala!ful ri$ht to do an" le$al !or8 in connection !ith real#estate transactions,especiall" in dra!in$ of real#estate contracts, deeds, 1ort$a$es, notes and the li8e.'here is no doubt but that he has en$a$ed in these practices over the "ears and haschar$ed for his services in that connection. ... People v. Schafer, *+ N.E. :d ++7-


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&&& &&& &&&... n attorne", in the 1ost $eneral sense, is a person desi$nated or e1plo"ed b"another to act in his stead? an a$ent? 1ore especiall", one of a class of personsauthori2ed to appear and act for suitors or defendants in le$al proceedin$s. Strictl",these professional persons are attorne"s at la!, and non#professional a$ents areproperl" st"led 9attorne"%s in fact?9 but the sin$le !ord is 1uch used as 1eanin$ an

attorne" at la!. person 1a" be an attorne" in facto for another, !ithout bein$ anattorne" at la!. bb. a! Dict. 9 ttorne".9 public attorne", or attorne" at la!, sa"s

ebster, is an officer of a court of la!, le$all" 6ualified to prosecute and defendactions in such court on the retainer of clients. 9'he principal duties of an attorne" are

(- to be true to the court and to his client? :- to 1ana$e the business of his client!ith care, s8ill, and inte$rit"? 7- to 8eep his client infor1ed as to the state of hisbusiness? >- to 8eep his secrets confided to hi1 as such. ... 3is ri$hts are to be

4ustl" co1pensated for his services.9 5ouv. a! Dict. tit. 9 ttorne".9 &he transiti eerb practice, as defined by 0ebster, )eans $to do or perfor) fre uently,

custo)arily, or habitually2 to perfor) by a succession of acts, as, to practice!a)in!, ... to carry on in practice, or repeated action2 to apply, as a theory, to reallife2 to e'ercise, as a profession, trade, art. etc.2 as, to practice law or 1edicine,%etc....9 State v. 5r"an, S.E. , >: R , M.S. +;*-. Practice of la! to fall !ithin the prohibition of statute hasbeen interpreted as custo1aril" or habituall" holdin$ one%s self out to the public, as a la!"er andde1andin$ pa"1ent for such services. ... . at p. ((:-It is to be noted that the Co11ission on ppoint1ent itself reco$ni2es habituality as a re6uiredco1ponent of the 1eanin$ of practice of la! in a Me1orandu1 prepared and issued b" it, to !it0

l. abituality . 'he ter1 %practice of la!% i1plies custo1aril"or habituall" holdin$ one%sself out to the public as a la!"er People v. Villanueva, (> SCR (=) citin$ State v.5r"an, > S.E. >- such as !hen one sends a circular announcin$ theestablish1ent of a la! office for the $eneral practice of la! .S. v. No" 5os6ue, *Phil. (>;-, or !hen one ta8es the oath of office as a la!"er before a notar" public,and files a 1anifestation !ith the Supre1e Court infor1in$ it of his intention topractice la! in all courts in the countr" People v. De una, (=: Phil. );*-.Practice is 1ore than an isolated appearance, for it consists in fre6uent or custo1ar"action, a succession of acts of the sa1e 8ind. In other !ords, it is a habitual e&ercise

People v. Villanueva, (> SCR ( =) citin$ State v. Cotner, ( :+, p. (, *+ an, *;>-.9Rollo, p. ((


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Respondent Monsod, corporate e&ecutive, civic leader, and 1e1ber of the ConstitutionalCo11ission 1a" possess the bac8$round, co1petence, inte$rit", and dedication, to 6ualif" for suchhi$h offices as President, Vice#President, Senator, Con$ress1an or overnor but the Constitution inprescribin$ the specific 6ualification of havin$ en$a$ed in the practice of la! for at least ten (=-"ears for the position of COME EC Chair1an has ordered that he 1a" not be confir1ed for thatoffice. 'he Constitution char$es the public respondents no less than this Court to obe" its 1andate.

I, therefore, believe that the Co11ission on ppoint1ents co11itted $rave abuse of discretion inconfir1in$ the no1ination of respondent Monsod as Chair1an of the COME EC.I vote to R N' the petition."idin, J., dissent Sep"r"te Op%#%o#'NAR ASA, J., concurrin$0I concur !ith the decision of the 1a4orit" !ritten b" Mr. @ustice Paras, albeit onl" in the result? it doesnot appear to 1e that there has been an ade6uate sho!in$ that the challen$ed deter1ination b" theCo11ission on ppoint1ents#that the appoint1ent of respondent Monsod as Chair1an of theCo11ission on Elections should, on the basis of his stated 6ualifications and after due assess1entthereof, be confir1ed#!as attended b" error so $ross as to a1ount to $rave abuse of discretion andconse6uentl" 1erits nullification b" this Court in accordance !ith the second para$raph of Section (,

rticle VIII of the Constitution. I therefore vote to DEN the petition.Melencio- errera, J., concur.PADI!!A, J., dissentin$0'he records of this case !ill sho! that !hen the Court first deliberated on the Petition at bar, I votednot onl" to re6uire the respondents to co11ent on the Petition, but I !as the sole vote for theissuance of a te1porar" restrainin$ order to en4oin respondent Monsod fro1 assu1in$ the positionof COME EC Chair1an, !hile the Court deliberated on his constitutional 6ualification for the office.M" purpose in votin$ for a 'RO !as to prevent the inconvenience and even e1barrass1ent to allparties concerned !ere the Court to finall" decide for respondent Monsod%s dis6ualification.Moreover, a readin$ of the Petition then in relation to established 4urisprudence alread"sho!ed pri)a facie that respondent Monsod did not possess the needed 6ualification, that is, he

had not en$a$ed in the practice of la! for at least ten (=- "ears prior to his appoint1ent asCOME EC Chair1an. fter considerin$ carefull" respondent Monsod%s co11ent, I a1 even 1ore convinced that theconstitutional re6uire1ent of 9 practice of law for at least ten ?9


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'herefore, a doctor of 1edicine !ho is e1plo"ed and is habituall" perfor1in$ the tas8s of a nursin$aide, cannot be said to be in the 9practice of 1edicine.9 certified public accountant !ho !or8s as acler8, cannot be said to practice his profession as an accountant. In the sa1e !a", a la!"er !ho ise1plo"ed as a business e&ecutive or a corporate 1ana$er, other than as head or attorne" of a e$alDepart1ent of a corporation or a $overn1ental a$enc", cannot be said to be in the practice of la!.

s aptl" held b" this Court in the case of (eople s. Dillanue a 0

(ractice is )ore than an isolated appearance for it consists in fre uent or custo)aryactions, a succession of acts of the sa)e #ind . In other !ords, it is fre6uent habituale&ercise State vs# Cotner, (:+, p. (, *+ an. *;>, >: R , M.S. +;*-. Practice ofla! to fall !ithin the prohibition of statute has been interpreted as custo1aril" orhabituall" holdin$ one%s self out to the public as a la!"er and de1andin$ pa"1ent for such services State vs. 5r"an, > S.E. >,;>+.- ... e1phasissupplied-.

It is !orth 1entionin$ that the respondent Co11ission on ppoint1ents in a Me1orandu1 itprepared, enu1erated several factors deter1inative of !hether a particular activit" constitutes9practice of la!.9 It states0

(. abituality . 'he ter1 9practice of la!9 i1plies custo1aril" or habituall" holdin$one%s self out to the public as a la!"er People vs. Villanueva, (> SCR (=) citin$

State v. 5o"en, > S.E. >- such as !hen one sends a circularannouncin$ the establish1ent of a la! office for the $eneral practice of la! .S. v.Ne" 5os6ue, * Phil. (>;-, or !hen one ta8es the oath of office as a la!"er before anotar" public, and files a 1anifestation !ith the Supre1e Court infor1in$ it of hisintention to practice la! in all courts in the countr" People v. De una, (=: Phil.);*-.Practice is 1ore than an isolated appearance for it consists in fre6uent or custo1ar"action, a succession of acts of the sa1e 8ind. In other !ords, it is a habitual e&ercise

People v. Villanueva, (> SCR (=) citin$ State v. Cotner, (:+, p. (, *+ an, *;>-.:. Co)pensation . Practice of la! i1plies that one 1ust have presented hi1self to bein the active and continued practice of the le$al profession and that his professionalservices are available to the public for co1pensation, as a service of his livelihood orin consideration of his said services. People v. Villanueva, supra-. 3ence, char$in$for services such as preparation of docu1ents involvin$ the use of le$al 8no!led$eand s8ill is !ithin the ter1 9practice of la!9 Ernani Pa o, 5ar Revie!er in e$al and@udicial Ethics, ()** ed., p. * citin$ People v. People%s Stoc8"ards State 5an8, (+;N.5. )=(- and, one !ho renders an opinion as to the proper interpretation of astatute, and receives pa" for it, is to that e&tent, practicin$ la! Martin, supra , p. *=;citin$ Mendelaun v. ilbert and 5ar8et Mf$. Co., :)= N. .S. >;:- If co1pensation ise&pected, all advice to clients and all action ta8en for the1 in 1atters connected !iththe la!? are practicin$ la!. El!ood Fitchette et al., v. rthur C. 'a"lor, )> # .R. 7


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:. Did respondent perfor1 such tas8s custo1aril" or habituall"H7. ssu1in$ that he perfor1ed an" of such tas8s habituall", did he do so 3 5I' FOR '

E S' 'EN (=- E RS prior to his appoint1ent as COME EC Chair1anHiven the e1plo"1ent or 4ob histor" of respondent Monsod as appears fro1 the records, I a1

persuaded that if ever he did perfor1 an" of the tas8s !hich constitute the practice of la!, he did not do so A"+&8ALL3 for at least ten ?9


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dee1ed en$a$ed in the practice of la! because he 1ust obe" the Public Service ct and the rulesand re$ulations of the Ener$" Re$ulator" 5oard.'he ponencia 6uotes an 1erican decision definin$ the practice of la! as the 9perfor1ance of an"acts . . . in or out of court, co11onl" understood to be the practice of la!,9 !hich tells us absolutel"nothin$. 'he decision $oes on to sa" that 9because la!"ers perfor1 al1ost ever" function 8no!n inthe co11ercial and $overn1ental real1, such a definition !ould obviousl" be too $lobal to be

!or8able.9'he effect of the definition $iven in the ponencia is to consider virtuall" ever" la!"er to be en$a$edin the practice of la! even if he does not earn his livin$, or at least part of it, as a la!"er. It is enou$hthat his activities are incidentall" even if onl" re1otel"- connected !ith so1e la!, ordinance, orre$ulation. 'he possible e&ception is the la!"er !hose inco1e is derived fro1 teachin$ ballroo1dancin$ or escortin$ !rin8led ladies !ith pubescent pretensions.'he respondent%s credentials are i1pressive, to be sure, but the" do not persuade 1e that he hasbeen en$a$ed in the practice of la! for ten "ears as re6uired b" the Constitution. It is conceded thathe has been en$a$ed in business and finance, in !hich areas he has distin$uished hi1self, but asan e&ecutive and econo1ist and not as a practicin$ la!"er. 'he plain fact is that he has occupiedthe various positions listed in his resu1e b" virtue of his e&perience and presti$e as a business1anand not as an attorne"#at#la! !hose principal attention is focused on the la!. Even if it be ar$ued

that he !as actin$ as a la!"er !hen he lobbied in Con$ress for a$rarian and urban refor1, served inthe N MFRE and the Constitutional Co11ission to$ether !ith non#la!"ers li8e far1ers andpriests- and !as a 1e1ber of the Davide Co11ission, he has not proved that his activities in thesecapacities e&tended over the prescribed (=#"ear period of actual practice of the la!. 3e is doubtlesse1inentl" 6ualified for 1an" other positions !orth" of his abundant talents but not as Chair1an ofthe Co11ission on Elections.I have 1uch ad1iration for respondent Monsod, no less than for Mr. @ustice Paras, but I 1ustre$retfull" vote to $rant the petition.GUTIERRE , JR., J., dissentin$0

hen this petition !as filed, there !as hope that en$a$in$ in the practice of la! as a 6ualification for public office !ould be settled one !a" or another in fairl" definitive ter1s. nfortunatel", this !as notthe result.Of the fourteen (>- 1e1ber Court, < are of the vie! that Mr. Christian Monsod en$a$ed in thepractice of la! !ith one of these < leavin$ his vote behind !hile on official leave but not e&pressin$his clear stand on the 1atter-? > cate$oricall" statin$ that he did not practice la!? : votin$ in theresult because there !as no error so $ross as to a1ount to $rave abuse of discretion? one of officialleave !ith no instructions left behind on ho! he vie!ed the issue? and : not ta8in$ part in thedeliberations and the decision.'here are t!o 8e" factors that 1a8e our tas8 difficult. First is our revie!in$ the !or8 of aconstitutional Co11ission on ppoint1ents !hose dut" is precisel" to loo8 into the 6ualifications ofpersons appointed to hi$h office. Even if the Co11ission errs, !e have no po!er to set aside error.

e can loo8 onl" into $rave abuse of discretion or !hi1sicall" and arbitrariness. Second is our belief that Mr. Monsod possesses superior 6ualifications in ter1s of e&ecutive abilit", proficienc" in1ana$e1ent, educational bac8$round, e&perience in international ban8in$ and finance, and instantreco$nition b" the public. 3is inte$rit" and co1petence are not 6uestioned b" the petitioner. hat is

before us is co1pliance !ith a specific re6uire1ent !ritten into the Constitution.Inspite of 1" hi$h re$ard for Mr. Monsod, I cannot shir8 1" constitutional dut". 3e has neveren$a$ed in the practice of la! for even one "ear. 3e is a 1e1ber of the bar but to sa" that he haspracticed la! is stretchin$ the ter1 be"ond rational li1its.

person 1a" have passed the bar e&a1inations. "ut if he has not dedicated his life to the law, if hehas not en!a!ed in an acti ity where )e)bership in the bar is a re uire)ent I fail to see ho! he canclai1 to have been en$a$ed in the practice of la!.En$a$in$ in the practice of la! is a 6ualification not onl" for COME EC chair1an but also forappoint1ent to the Supre1e Court and all lo!er courts. hat 8ind of @ud$es or @ustices !ill !e


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have if there 1ain occupation is sellin$ real estate, 1ana$in$ a business corporation, servin$ in fact#findin$ co11ittee, !or8in$ in 1edia, or operatin$ a far1 !ith no active involve1ent in the la!,!hether in overn1ent or private practice, e&cept that in one 4o"ful 1o1ent in the distant past, the"happened to pass the bar e&a1inationsH'he Constitution uses the phrase 9en$a$ed in the practice of la! for at least ten "ears.9 'hedeliberate choice of !ords sho!s that the practice envisioned is active and re$ular, not isolated,

occasional, accidental, inter1ittent, incidental, seasonal, or e&te1poraneous. 'o be 9en$a$ed9 in anactivit" for ten "ears re6uires co11itted participation in so1ethin$ !hich is the result of one%sdecisive choice. It 1eans that one is occupied and involved in the enterprise? one is obli$ed orpled$ed to carr" it out !ith intent and attention durin$ the ten#"ear period.I a$ree !ith the petitioner that based on the bio#data sub1itted b" respondent Monsod to theCo11ission on ppoint1ents, the latter has not been en$a$ed in the practice of la! for at least ten"ears. In fact, if appears that Mr. Monsod has never practiced la! e&cept for an alle$ed one "earperiod after passin$ the bar e&a1inations !hen he !or8ed in his father%s la! fir1. Even then his la!practice 1ust have been e&tre1el" li1ited because he !as also !or8in$ for M. . and Ph. D.de$rees in Econo1ics at the niversit" of Penns"lvania durin$ that period. 3o! could he practicela! in the nited States !hile not a 1e1ber of the 5ar thereH'he professional life of the respondent follo!s0

(.(


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i. 'arlac Reforestation and Environ1ent Enterprises 4. 'olon$ 6uaculture Corporation8. Visa"an 6uaculture Corporationl. ui1aras 6uaculture Corporation Rollo, pp. :(#::-

'here is nothin$ in the above bio#data !hich even re1otel" indicates that respondent Monsod has$iven the law enou$h attention or a certain de$ree of co11it1ent and participation as !ould supportin all sincerit" and candor the clai1 of havin$ en$a$ed in its practice for at least ten "ears. Instead of !or8in$ as a la!"er, he has la!"ers !or8in$ for hi1. Instead of $ivin$ receivin$ that le$al advice ofle$al services, he !as the oneadvice and those services as an e&ecutive but not as a la!"er.'he deliberations before the Co11ission on ppoint1ents sho! an effort to e6uate 9en$a$ed in thepractice of la!9 !ith the use of le$al 8no!led$e in various fields of endeavor such as co11erce,industr", civic !or8, blue ribbon investi$ations, a$rarian refor1, etc. !here such 8no!led$e !ould behelpful.I re$ret that I cannot 4oin in pla"in$ fast and loose !ith a ter1, !hich even an ordinar" la"1anaccepts as havin$ a fa1iliar and custo1ar" !ell#defined 1eanin$. Ever" resident of this countr" !hohas reached the a$e of discern1ent has to 8no!, follo!, or appl" the la! at various ti1es in his life.

e$al 8no!led$e is useful if not necessar" for the business e&ecutive, le$islator, 1a"or, baran$a"captain, teacher, police1an, far1er, fisher1an, 1ar8et vendor, and student to na1e onl" a fe!. nd

"et, can these people honestl" assert that as such, the" are en$a$ed in the practice of la!H'he Constitution re6uires havin$ been 9en$a$ed in the practice of la! for at least ten "ears.9 It is notsatisfied !ith havin$ been 9a 1e1ber of the Philippine bar for at least ten "ears.9So1e 1erican courts have defined the practice of la!, as follo!s0

'he practice of la! involves not onl" appearance in court in connection !ith liti$ationbut also services rendered out of court, and it includes the $ivin$ of advice or therenderin$ of an" services re6uirin$ the use of le$al s8ill or 8no!led$e, such aspreparin$ a !ill, contract or other instru1ent, the le$al effect of !hich, under the factsand conditions involved, 1ust be carefull" deter1ined. (eople e' rel. Chica!o "ar

Ass$n . &in#off , 7)) Ill. :*:, ++ N.E.:d ;)7? (eople e' rel. +llinois State "ar Ass$n .(eople$s Stoc# 3ards State "an# , 7>> Ill. >;:,(+; N.E. )=(, and cases cited.It !ould be difficult, if not i1possible to la" do!n a for1ula or definition of !hat

constitutes the practice of la!. 9Practicin$ la!9 has been defined as 9Practicin$ as anattorne" or counselor at la! accordin$ to the la!s and custo1s of our courts, is the$ivin$ of advice or rendition of an" sort of service b" an" person, fir1 or corporation!hen the $ivin$ of such advice or rendition of such service re6uires the use of an"de$ree of le$al 8no!led$e or s8ill.9 ithout adoptin$ that definition, !e referred to itas bein$ substantiall" correct in (eople e' rel. +llinois State "ar Ass$n . (eople$sStoc# 3ards State "an# , 7>> Ill. >;:,(+; N.E. )=(. People v. Schafer, *+ N.E. :d++7, ++;-

For one%s actions to co1e !ithin the purvie! of practice of law the" should not onl" be activitiespeculiar to the !or8 of a la!"er, the" should also be perfor1ed, habituall", fre6uentl" or custo1aril",to !it0

&&& &&& &&&Respondent%s ans!ers to 6uestions propounded to hi1 !ere rather evasive. 3e !asas8ed !hether or not he ever prepared contracts for the parties in real#estatetransactions !here he !as not the procurin$ a$ent. 3e ans!ered0 9Ver" seldo1.9 Inans!er to the 6uestion as to ho! 1an" ti1es he had prepared contracts for theparties durin$ the t!ent"#one "ears of his business, he said0 9I have no Idea.9 henas8ed if it !ould be 1ore than half a do2en ti1es his ans!er !as I suppose. s8ed if he did not recall 1a8in$ the state1ent to several parties that he had preparedcontracts in a lar$e nu1ber of instances, he ans!ered0 9I don%t recall e&actl" !hat!as said.9 hen as8ed if he did not re1e1ber sa"in$ that he had 1ade a practice of preparin$ deeds, 1ort$a$es and contracts and char$in$ a fee to the parties therefor


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in instances !here he !as not the bro8er in the deal, he ans!ered0 9 ell, I don%tbelieve so, that is not a practice.9 Pressed further for an ans!er as to his practice inpreparin$ contracts and deeds for parties !here he !as not the bro8er, he finall"ans!ered0 9I have done about ever"thin$ that is on the boo8s as far as real estate isconcerned.9

&&& &&& &&&

Respondent ta8es the position that because he is a real#estate bro8er he has ala!ful ri$ht to do an" le$al !or8 in connection !ith real#estate transactions,especiall" in dra!in$ of real#estate contracts, deeds, 1ort$a$es, notes and the li8e.'here is no doubt but that he has en$a$ed in these practices over the "ears and haschar$ed for his services in that connection. ... People v. Schafer, *+ N.E. :d ++7-

&&& &&& &&&... n attorne", in the 1ost $eneral sense, is a person desi$nated or e1plo"ed b"another to act in his stead? an a$ent? 1ore especiall", one of a class of personsauthori2ed to appear and act for suitors or defendants in le$al proceedin$s. Strictl",these professional persons are attorne"s at la!, and non#professional a$ents areproperl" st"led 9attorne"%s in fact?9 but the sin$le !ord is 1uch used as 1eanin$ anattorne" at la!. person 1a" be an attorne" in facto for another, !ithout bein$ an

attorne" at la!. bb. a! Dict. 9 ttorne".9 public attorne", or attorne" at la!, sa"sebster, is an officer of a court of la!, le$all" 6ualified to prosecute and defendactions in such court on the retainer of clients. 9'he principal duties of an attorne" are

(- to be true to the court and to his client? :- to 1ana$e the business of his client!ith care, s8ill, and inte$rit"? 7- to 8eep his client infor1ed as to the state of hisbusiness? >- to 8eep his secrets confided to hi1 as such. ... 3is ri$hts are to be

4ustl" co1pensated for his services.9 5ouv. a! Dict. tit. 9 ttorne".9 &he transiti eerb practice, as defined by 0ebster, )eans $to do or perfor) fre uently,

custo)arily, or habitually2 to perfor) by a succession of acts, as, to practice!a)in!, ... to carry on in practice, or repeated action2 to apply, as a theory, to reallife2 to e'ercise, as a profession, trade, art. etc.2 as, to practice law or 1edicine,%etc....9 State v. 5r"an, S.E. , >: R , M.S. +;*-. Practice of la! to fall !ithin the prohibition of statute hasbeen interpreted as custo1aril" or habituall" holdin$ one%s self out to the public, as a la!"er andde1andin$ pa"1ent for such services. ... . at p. ((:-It is to be noted that the Co11ission on ppoint1ent itself reco$ni2es habituality as a re6uiredco1ponent of the 1eanin$ of practice of la! in a Me1orandu1 prepared and issued b" it, to !it0

l. abituality . 'he ter1 %practice of la!% i1plies custo1aril"or habituall" holdin$ one%sself out to the public as a la!"er People v. Villanueva, (> SCR (=) citin$ State v.5r"an, > S.E. >- such as !hen one sends a circular announcin$ the

establish1ent of a la! office for the $eneral practice of la! .S. v. No" 5os6ue, *Phil. (>;-, or !hen one ta8es the oath of office as a la!"er before a notar" public,and files a 1anifestation !ith the Supre1e Court infor1in$ it of his intention topractice la! in all courts in the countr" People v. De una, (=: Phil. );*-.Practice is 1ore than an isolated appearance, for it consists in fre6uent or custo1ar"action, a succession of acts of the sa1e 8ind. In other !ords, it is a habitual e&ercise

People v. Villanueva, (> SCR ( =) citin$ State v. Cotner, ( :+, p. (, *+ an, *;>-.9Rollo, p. ((


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hile the career as a business1an of respondent Monsod 1a" have profited fro1 his le$al8no!led$e, the use of such le$al 8no!led$e is incidental and consists of isolated activities !hich donot fall under the deno1ination of practice of la!. d1ission to the practice of la! !as not re6uiredfor 1e1bership in the Constitutional Co11ission or in the Fact#Findin$ Co11ission on the ()*)Coup tte1pt. n" specific le$al activities !hich 1a" have been assi$ned to Mr. Monsod !hile a1e1ber 1a" be li8ened to isolated transactions of forei$n corporations in the Philippines !hich do

not cate$ori2e the forei$n corporations as doin$ business in the Philippines. s in the practice ofla!, doin! business also should be active and continuous. Isolated business transactions oroccasional, incidental and casual transactions are not !ithin the conte&t of doin$ business. 'his !asour rulin$ in the case of Anta) Consolidated, +nc. . Court of appeals, (>7 SCR :** A()*;B-.Respondent Monsod, corporate e&ecutive, civic leader, and 1e1ber of the ConstitutionalCo11ission 1a" possess the bac8$round, co1petence, inte$rit", and dedication, to 6ualif" for suchhi$h offices as President, Vice#President, Senator, Con$ress1an or overnor but the Constitution inprescribin$ the specific 6ualification of havin$ en$a$ed in the practice of la! for at least ten (=-"ears for the position of COME EC Chair1an has ordered that he 1a" not be confir1ed for thatoffice. 'he Constitution char$es the public respondents no less than this Court to obe" its 1andate.I, therefore, believe that the Co11ission on ppoint1ents co11itted $rave abuse of discretion inconfir1in$ the no1ination of respondent Monsod as Chair1an of the COME EC.

I vote to R N' the petition."idin, J., dissent oot#ote'

( ebster%s 7rd Ne! International Dictionar".: (> SCR (=)7 Co11ission on ppoint1ents% Me1orandu1 dated :< @une ())( RE0 3 'CONS'I' 'ES PR C'ICE OF , pp. ;#+.> (> SCR (=).

Republic of the PhilippinesSUPREME COURT

ManilaSECOND DIVISIONA.M. No. P20 219/0 ebr "r) 4, 00JUDGE !EAH DOMINGO2REGA!A, REGIONA! TRIA! COURT, +RANCH 5, 6UE ONCITY, co1plainant,vs.MA. DONNA Y. SU!TAN, !EGA! RESEARCHER, REGIONA! TRIA! COURT, +RANCH 5,6UE ON CITY, Respondent.

D E C I S I O NCHICO2NA ARIO, J.:@ud$e eah Do1in$o#Re$ala, Re$ional 'rial Court R'C-, 5ranch ::;, ue2on Cit", has char$edMa. Donna . Sultan, e$al Researcher of the sa1e court, !ith Inefficienc", 3abitual bsenteeis1,

'ardiness, Falsification of Dail" 'i1e Record, Dishonest", and Conduct Pre4udicial to the Service.In a referral letter dated (: Ma" :===, Court d1inistrator 5ernardo '. Ponferrada re6uested @ud$eRe$ala to co11ent on the unauthori2ed leave of absence for the period (#:) October ())), 7#:)Nove1ber ())), and (#7 and =; Dece1ber ())), of Ma. Donna . Sultan. Said absences !ere thesub4ect of a letter b" Ma. Donna Sultan addressed to the Office of the Court d1inistrator OC -co1plainin$ the disapproval b" @ud$e Re$ala of her applications for leave on the above#1entioneddates.In her co11ent dated =< @une :===, @ud$e Re$ala alle$es that Ma. Donna Sultan is $uilt" ofhabitual absenteeis1 as defined b" d1inistrative Circular No. (#)( for havin$ incurred


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unauthori2ed absences e&ceedin$ the allo!able :.< da"s 1onthl" leave credits for at least three 7-1onths in a se1ester0

@une ())) ############### * da"s

@ul" ())) ################ : da"s

u$ust ())) ############ 7 da"s

Septe1ber ())) ####### < da"s

October ())) ########## :( da"s

Nove1ber ())) ####### () da"s

Dece1ber ())) ######## 7 da"s

@anuar" :=== ########### : da"s

Februar" :=== ########## ( da"

March :=== ############## ( da"

Ma" :===################# + da"s(

Said circular states that 9an officer or e1plo"ee in the civil service shall be considered habituall"absent if he incurs unauthori2ed absences e&ceedin$ the allo!able :.< da"s 1onthl" leave creditunder the leave la! for at least three 7- 1onths in a se1ester or at least three 7- consecutive1onths durin$ the "ear.9 She added further that Ma. Donna Sultan had al!a"s $one on e&tendedleave of absence !ithout filin$ applications for leave in advance, also in violation of said Circular.On the char$e of tardiness and falsification of dail" ti1e record, @ud$e Re$ala clai1s thatrespondent has al!a"s been tard" in reportin$ for !or8 and si$ns the office lo$boo8 !ith a ti1eearlier than that of her actual arrival. Said entries in the lo$boo8 are reflected in her dail" ti1erecord. Moreover, co1plainant alle$es that Ma. Donna Sultan leaves at about eleven oQcloc8 in the1ornin$ to ta8e lon$ lunch brea8s out of the office and co1es bac8 lon$ after t!o oQcloc8 in theafternoon.

ith respect to the char$e of inco1petence, co1plainant clai1s that Ma. Donna Sultan cannot carr"out proper le$al research, that is, she cannot find cases in point? neither can she co1e up !ith thelatest 4urisprudence on the sub4ect 1atter assi$ned to her and instead copies verbati1 fro1te&tboo8s. @ud$e Re$ala finds respondent not suited for the 4ob. @ud$e Re$ala 1aintains that Ma.Donna Sultan is slo! to learn, re6uires fre6uent instruction, and finds difficult" in ad4ustin$ herself tone! tas8s, 1ethods and details of !or8. :

Re$ardin$ the i1putation of dishonest", co1plainant alle$es that in the 1onth of October, !henrespondent !ent on an e&tended leave, respondent 1isled her and the 1e1bers of her staff tobelieve that respondentQs dau$hter !as confined in Malvar eneral 3ospital for da"s, !hich uponverification, !as discovered to be untrue.@ud$e Re$ala asserts that respondent often $oes out of the office to tal8 to la!"ers !ho have casesbefore 5ranch ::;, R'C, ue2on Cit", and that she en$a$es in lon$ telephone conversations durin$office hours. Said acts, accordin$ to co1plainant, constitute conduct pre4udicial to the service.Respondent does not den" that she has incurred the alle$ed absences but states that e&cept for the1onths of October, Nove1ber, and Dece1ber ())), all her absences !ere authori2ed, !ith thecorrespondin$ applications for leave dul" filed and approved. For the absences she incurred for theabove#1entioned 1onths, respondent did file the re6uired applications for leave but all !eredisapproved. Respondent no! evo8es the for$iveness of @ud$e Re$ala, and her understandin$, forit !as durin$ said period that respondent suffered a ver" serious fa1il" proble1 and had to absentherself fro1 !or8 to attend to said dile11a.
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ith respect to the accusations of habitual tardiness, respondent 1aintains that @ud$e Re$ala had$iven her staff a $race period of thirt" 7=- 1inutes fro1 *0== a.1., or up to *07= a.1., to ti1e#in!ithout bein$ considered late. Respondent ad1its that there !ere instances !hen she arrives after*07= a.1. but these late arrivals are all properl" reflected in the lo$boo8 and on her dail" ti1erecords. Respondent further denies that she is usuall" out of the office the !hole da", and, if evershe had to $o out of the office, respondent !ould al!a"s as8 per1ission fro1 either the 5ranch

Cler8 of Court or @ud$e Re$ala herself. propos her alle$ed inco1petence, respondent clai1s that as a la! $raduate, she at least has thebasic 8no!led$e of la! and le$al research. Respondent stresses that in an" tas8 assi$ned to her,she tries to fulfill it to the best of her abilities. Respondent ad1its that at ti1es she co11its errorsand 1ista8es in the perfor1ance of her duties, she ho!ever discloses that she !as loo8in$ for!ardto the $uidance and tutela$e of @ud$e Re$ala in order to enhance her !or8. Moreover, respondentpointed out that althou$h co1plainant had recentl" $iven her a perfor1ance ratin$ of9 nsatisfactor",9 the latter had earlier $iven her a ratin$ of 9Ver" Satisfactor".9Re$ardin$ the i1putation that respondent has 1isled the court to believe that her absence !as dueto her dau$hterQs confine1ent in the hospital, respondent 1aintains that she did not tell a 1e1ber of the staff of 5ranch ::;, R'C, ue2on Cit", that she confined her dau$hter at Malvar eneral3ospital? rather, she told her office1ate Evel"n 5orela that she !ould brin$ her dau$hter to saidhospital as an out#patient for 1edical e&a1inations. Respondent is apolo$etic if an"1isunderstandin$ occurred because of her failure to personall" infor1 @ud$e Re$ala re$ardin$ her!hereabouts.

astl", respondent asserts that she !ill not co1pro1ise her e1plo"1ent b" $oin$ out of the office total8 to la!"ers !ho have cases before the court. Respondent e&plains that !hen la!"ers andliti$ants co1e to their office to in6uire re$ardin$ the status of their cases, there !ere instances !henrespondent had to attend to the1, especiall" !hen the person in char$e !as not around. 7 s to theuse of the office telephone, respondent 1aintains that she onl" uses the phone to ans!er inco1in$calls but sees to it that she does not ta8e lon$ in deference to other official calls.Due to the fact that the instant ad1inistrative case involves several issues !hich could not beresolved b" 1erel" $oin$ over the pleadin$s sub1itted b" the parties, the Court, perreco11endation of the OC , referred the 1atter to 3on. Monina revalo Ge arosa, > then E&ecutive@ud$e, R'C, ue2on Cit", for investi$ation, report and reco11endation. < @ud$e Ge arosa !assucceeded b" @ud$e Catral Mendo2a, ; !ho, in turn !as succeeded b" @ud$e Natividad iron Di2onas E&ecutive @ud$e of R'C, ue2on Cit", and investi$atin$ 4ud$e of the case. 3o!ever, in vie! ofthe nu1erous cases the latter inherited fro1 her predecessors#in#office, E&ecutive @ud$e Di2ondesi$nated @ud$e @ai1e N. Sala2ar, @r., 7rd Vice E&ecutive @ud$e of ue2on Cit", 5ranch (=7, toconduct the investi$ation in the instant case. +

In his Resolution and Reco11endation dated () Nove1ber :==:, Investi$atin$ @ud$e Sala2arfound respondent liable for inco1petence and habitual absenteeis1, but absolved respondent asre$ards the char$es of habitual tardiness, falsification of dail" ti1e record, and conduct pre4udicial tothe service due to insufficienc" of evidence. 'he Investi$atin$ @ud$e reco11ended that respondentbe repri1anded for inco1petence, but refrained fro1 reco11endin$ an" penalt" for habitualabsenteeis1 in deference to the evaluation of the OC .In a Report dated () October :==>, the OC affir1ed the findin$s of the Investi$atin$ @ud$e

pertainin$ to respondentQs liabilit" for inefficienc" and habitual absenteeis1 but overturned thereco11endation absolvin$ respondent fro1 the char$e of conduct pre4udicial to the service. ccordin$ to the OC 0Investi$atin$ @ud$e observed that, as b" her ad1ission, respondent !as 96uite ill#prepared for the

4ob9 and the present scenario is not uni6ue bet!een co1plainant and respondent. 'he 6ualificationthat a la! $raduate can be appointed le$al researcher and the lo! salar" attached to the positionare to be bla1ed for the 9lo! 6ualit" perfor1ance of plent" of R'C researchers.9 a! $raduates !hoare 9bri$ht9 usuall" pass the bar. Respondent e&pected $uidance fro1 co1plainant as her 4ud$e.'he Investi$atin$ @ud$e concurs as it 9can be e&pected since a la! $raduate fro1 .E. !ith no
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acade1ic bac8$round on le$al biblio$raph" and no professional bac8$round on le$al research canonl" e&pect $uidance fro1 her @ud$e and possibl", the 5ranch Cler8 of Court, in the course of her!or8.9

e do not subscribe to the alibis proffered that the 6ualifications for the position of le$al researcherand the lo! salar" attached to the position are the causes for poor 6ualit" of !or8 turned in b" le$alresearchers. 'he $enerali2ation of Investi$atin$ @ud$e re$ardin$ the substandard capabilit" of le$al

researchers to deliver decent service bein$ 1ere la! $raduates is not onl" unfounded but unfair as!ell. . . 'his state1ent is tanta1ount to sa"in$ that inco1petence is to be e&pected fro1 le$alresearchers. Public office is public trust. s all others in public service, respondent is e&pected toe&ecute her duties !ith efficienc" and co1petence. Nothin$ less is e&pected of her.. . .'he investi$ation revealed that respondent incurred unauthori2ed absences on the follo!in$ 1onths0

October ())) := da"s

Nove1ber ())) () da"s

Dece1ber ())) > da"s

It !as also found that respondent !ent on O pri1aril" due to serious fa1il" e1er$enc". l phi9.net henshe returned to !or8 in Dece1ber and found the at1osphere in the court hostile, she incurredadditional absences to !or8 on her transfer to another court. Respondent sub1its to the findin$s ofthe Investi$atin$ @ud$e and pleads to co1plainant for understandin$ and for$iveness.It is noted that prior to respondent $oin$ on O , respondent 1et no proble1 $ettin$ the approvalfor her applications for leave. It !as !hen respondent !ent on prolon$ed unauthori2ed absencesand co1plainant started as8in$ for her !hereabouts that the approval of her applications for leavebeca1e an issue. Records sho! that respondent failed to e&ert efforts to infor1 co1plainant of herdire do1estic situation. Infor1ation reachin$ co1plainant re$ardin$ respondent durin$ her absence!ere rela"ed b" office1ates !ith !ho1 respondent 8ept in touch.. . .

RespondentQs violation of the rule on filin$ applications for leave is apparent in her narration of facts.She !ent on leave !ithout see8in$ proper per1ission fro1 her superior. hen the fa1il" crisis ca1eabout, she !as still able to $o to the court to $et her 'M card "et she !as not able to file herapplication for leave. On the occasions that she called the office, she !as re1inded to file her leaveof absence and to spea8 !ith co1plainant !ho !as alread" loo8in$ for her, but she did not do either.She called the office dail", but she never as8ed to spea8 !ith co1plainant. . .RespondentQs absences on the relevant 1onths 6ualif" as habitual absenteeis1 as defined andpenali2ed in d1inistrative Circular No. (>#:==: Re0 Reiteratin$ the Civil Service Co11issionQsPolic" on 3abitual bsenteeis1- citin$ Me1orandu1 Circular No. =>, s. ())(, !hich provides to !it0

A. abitual Absenteeis)(. An officer or e)ployee in the ci il ser ice shall be considered habitually absent if he incursunauthori5ed absences e'ceedin! the allowable .F days )onthly lea e credit under the lea e law

for at least three ? @ )onths in a se)ester or at least three ? @ consecuti e )onths durin! the year .. . .'he investi$atio

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