Cayetano vs. Monsod, GR. No.

100113, September 31, 1991

FACTS:

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 Renato Cayetano 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. Atty. Monsod has worked as a
lawyer in the law office of his father (1960-1963); an operations officer with the World Bank
Group (1963-1970); Chief Executive Officer of an investment bank (1970-1986); legal or
economic consultant on various companies (1986); Secretary General of NAMFREL (1986);
member of Constitutional Commission (1986-1987); National Chairman of NAMFREL
(1987); and member of the quasi-judicial Davide Commission (1990).

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.

ISSUE: Whether or not the respondent possesses the required qualification of having
engaged in the practice of law for at least ten years.

HELD:

Yes, the respondent possesses the required qualification.

In the case of Philippine Lawyers Association vs. Agrava: The practice of law is not limited to
the conduct of cases or litigation in court. 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 judicial body, the foreclosure
of 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.

Practice of law means any activity, in or out 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. In general, a practice of law
requires a lawyer and client relationship, it is whether in or out of court. As such, the petition
is dismissed.
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 Muñoz-Palma for
"innumerable amendments to reconcile government functions with individual
freedoms and public accountability and the party-list system for the House of
Representative. (pp. 128-129 Rollo) ( Emphasis supplied)

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

In a loan agreement, for instance, a negotiating panel acts as a team,

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

After a fashion, the loan agreement is like a country's Constitution; it

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

In the same vein, lawyers play an important role in any debt

restructuring program. For aside from performing the tasks of
legislative drafting and legal advising, they score national development
policies as key factors in maintaining their countries' sovereignty.
(Condensed from the work paper, entitled "Wanted: Development
Lawyers for Developing Nations," submitted by L. Michael Hager,
regional legal adviser of the United States Agency for International
Development, during the Session on Law for the Development of
Nations at the Abidjan World Conference in Ivory Coast, sponsored by
the World Peace Through Law Center on August 26-31, 1973).
( Emphasis supplied)
 Loan concessions and compromises, perhaps even more so than
purely 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 elected
President of the Philippines, say, on the ground that he lacks one or more
qualifications. This matter, I greatly doubt. For one thing, how can an action or
petition be brought against the President? And even assuming that he is indeed
disqualified, how can the action be entertained since he is the incumbent President?

We now proceed:

The Commission on the basis of evidence submitted doling the public hearings on
Monsod's confirmation, implicitly determined that he possessed the necessary
qualifications as required by law. The judgment rendered by the Commission in the
exercise of such an acknowledged power is beyond judicial interference except only
upon a clear showing of a grave abuse of discretion amounting to lack or excess of
jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only where such grave abuse of
discretion is clearly shown shall the Court interfere with the Commission's judgment.
In the instant case, there is no occasion for the exercise of the Court's corrective
power, since no abuse, much less a grave abuse of discretion, that would amount to
lack or excess of jurisdiction and would warrant the issuance of the writs prayed, for
has been clearly shown.

Additionally, consider the following:

(1) If the Commission on Appointments rejects a nominee by the

President, may the Supreme Court reverse the Commission, and thus
in effect confirm the appointment? Clearly, the answer is in the
negative.

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

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

Finally, one significant legal maxim is:

We must interpret not by the letter that killeth, but by the spirit that
giveth life.

Take this hypothetical case of Samson and Delilah. Once, the procurator of Judea
asked Delilah (who was Samson's beloved) for help in capturing Samson. Delilah
agreed on condition that —
 No blade shall touch his skin;

No blood shall flow from his veins.

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

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

SO ORDERED.

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

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

Sarmiento, J., is on leave.

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

Separate Opinions

NARVASA, J., concurring:

I concur with the decision of the majority written by Mr. Justice Paras, albeit only in
the result; it does not appear to me that there has been an adequate showing that
the challenged determination by the Commission on Appointments-that the
appointment of respondent Monsod as Chairman of the Commission on Elections
should, on the basis of his stated qualifications and after due assessment thereof, be
confirmed-was attended by error so gross as to amount to grave abuse of discretion
and consequently merits nullification by this Court in accordance with the second
paragraph of Section 1, Article VIII of the Constitution. I therefore vote to DENY the
petition.

PADILLA, J., dissenting:

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 Paño,
Bar Reviewer in Legal and Judicial Ethics, 1988 ed., p. 8 citing People
v. People's Stockyards State Bank, 176 N.B. 901) and, one who
renders an opinion as to the proper interpretation of a statute, and
receives pay for it, is to that extent, practicing law (Martin, supra, p. 806
citing Mendelaun v. Gilbert and Barket Mfg. Co., 290 N.Y.S. 462) If
compensation is expected, all advice to clients and all action taken for
them in matters connected with the law; are practicing law. (Elwood
Fitchette et al., v. Arthur C. Taylor, 94A-L.R. 356-359)

3. Application of law legal principle practice or procedure which calls for

legal knowledge, training and experience is within the term "practice of
law". (Martin supra)

4. Attorney-client relationship. Engaging in the practice of law

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

The above-enumerated factors would, I believe, be useful aids in determining

whether or not respondent Monsod meets the constitutional qualification of practice
of law for at least ten (10) years at the time of his appointment as COMELEC
Chairman.

The following relevant questions may be asked:

1. Did respondent Monsod perform any of the tasks which are peculiar to the
practice of law?

2. Did respondent perform such tasks customarily or habitually?

3. Assuming that he performed any of such tasks habitually, did he do so

HABITUALLY FOR AT LEAST TEN (10) YEARS prior to his appointment as
COMELEC Chairman?

Given the employment or job history of respondent Monsod as appears from the
records, I am persuaded that if ever he did perform any of the tasks which constitute
the practice of law, he did not do so HABITUALLY for at least ten (10) years prior to
his appointment as COMELEC Chairman.

While it may be granted that he performed tasks and activities which could be
latitudinarianly considered activities peculiar to the practice of law, like the drafting of
legal documents and the rendering of legal opinion or advice, such were isolated
transactions or activities which do not qualify his past endeavors as "practice of law."
To become engaged in the practice of law, there must be a continuity, or a
succession of acts. As observed by the Solicitor General in People vs. Villanueva:4

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

ACCORDINGLY, my vote is to GRANT the petition and to declare respondent

Monsod as not qualified for the position of COMELEC Chairman for not having
engaged in the practice of law for at least ten (10) years prior to his appointment to
such position.

CRUZ, J., dissenting:

I am sincerely impressed by the ponencia of my brother Paras but find I must dissent
just the same. There are certain points on which I must differ with him while of
course respecting hisviewpoint.

To begin with, I do not think we are inhibited from examining the qualifications of the
respondent simply because his nomination has been confirmed by the Commission
on Appointments. In my view, this is not a political question that we are barred from
resolving. Determination of the appointee's credentials is made on the basis of the
established facts, not the discretion of that body. Even if it were, the exercise of that
discretion would still be subject to our review.

In Luego, which is cited in the ponencia, what was involved was the discretion of the
appointing authority to choose between two claimants to the same office who both
possessed the required qualifications. It was that kind of discretion that we said
could not be reviewed.

If a person elected by no less than the sovereign people may be ousted by this Court
for lack of the required qualifications, I see no reason why we cannot disqualified an
appointee simply because he has passed the Commission on Appointments.

Even the President of the Philippines may be declared ineligible by this Court in an
appropriate proceeding notwithstanding that he has been found acceptable by no
less than the enfranchised citizenry. The reason is that 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 Attempt — Member

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

following companies:

a. ACE Container Philippines, Inc.

b. Dataprep, Philippines

c. Philippine SUNsystems Products, Inc.

d. Semirara Coal Corporation

e. CBL Timber Corporation

Member of the Board of the Following:

a. Engineering Construction Corporation of the Philippines

b. First Philippine Energy Corporation

c. First Philippine Holdings Corporation

d. First Philippine Industrial Corporation

e. Graphic Atelier

f. Manila Electric Company

g. Philippine Commercial Capital, Inc.

h. Philippine Electric Corporation

i. Tarlac Reforestation and Environment Enterprises

j. Tolong Aquaculture Corporation

k. Visayan Aquaculture Corporation

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

There is nothing in the above bio-data which even remotely indicates that
respondent Monsod has given the law enough attention or a certain degree of
commitment and participation as would support in all sincerity and candor the claim
of having engaged in its practice for at least ten years. Instead of working as a
lawyer, he has lawyers working for him. Instead of giving receiving that legal advice
of legal services, he was the oneadvice and those services as an executive but not
as a lawyer.

The deliberations before the Commission on Appointments show an effort to equate

"engaged in the practice of law" with the use of legal knowledge in various fields of
endeavor such as commerce, industry, civic work, blue ribbon investigations,
agrarian reform, etc. where such knowledge would be helpful.

I regret that I cannot join in playing fast and loose with a term, which even an
ordinary layman accepts as having a familiar and customary well-defined meaning.
Every resident of this country who has reached the age of discernment has to know,
follow, or apply the law at various times in his life. Legal knowledge is useful if not
necessary for the business executive, legislator, mayor, barangay captain, teacher,
policeman, farmer, fisherman, 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:

x x x           x x x          x x x

Respondent's answers to questions propounded to him were rather

evasive. He was asked whether or not he ever prepared contracts for
the parties in real-estate transactions where he was not the procuring
agent. He answered: "Very seldom." In answer to the question as to
how many times he had prepared contracts for the parties during the
twenty-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."

x x x           x x x          x x x

Respondent takes the position that because he is a real-estate broker

he has a lawful right to do any legal work in connection with real-estate
transactions, especially in drawing of real-estate contracts, deeds,
mortgages, notes and the like. There is no doubt but that he has
engaged in these practices over the years and has charged for his
services in that connection. ... (People v. Schafer, 87 N.E. 2d 773)

x x x           x x x          x x x

... An attorney, in the most general sense, is a person designated or

employed by another to act in his stead; an agent; more especially, one
of a class of persons authorized to appear and act for suitors or
defendants in legal proceedings. Strictly, these professional persons
are attorneys at law, and non-professional agents are properly styled
"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]):

x x x           x x x          x x x

... Practice is more than an isolated appearance, for it consists in frequent or

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

It is to be noted that the Commission on Appointment itself recognizes habituality as

a required component of the meaning of practice of law in a Memorandum prepared
and issued by it, to wit:

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)

x x x           x x x          x x x

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

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

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

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

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

I vote to GRANT the petition.

Bidin, J., 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 Paño,
Bar Reviewer in Legal and Judicial Ethics, 1988 ed., p. 8 citing People
v. People's Stockyards State Bank, 176 N.B. 901) and, one who
renders an opinion as to the proper interpretation of a statute, and
receives pay for it, is to that extent, practicing law (Martin, supra, p. 806
citing Mendelaun v. Gilbert and Barket Mfg. Co., 290 N.Y.S. 462) If
compensation is expected, all advice to clients and all action taken for
them in matters connected with the law; are practicing law. (Elwood
Fitchette et al., v. Arthur C. Taylor, 94A-L.R. 356-359)

3. Application of law legal principle practice or procedure which calls for

legal knowledge, training and experience is within the term "practice of
law". (Martin supra)

4. Attorney-client relationship. Engaging in the practice of law

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

The above-enumerated factors would, I believe, be useful aids in determining

whether or not respondent Monsod meets the constitutional qualification of practice
of law for at least ten (10) years at the time of his appointment as COMELEC
Chairman.
The following relevant questions may be asked:

1. Did respondent Monsod perform any of the tasks which are peculiar to the
practice of law?

2. Did respondent perform such tasks customarily or habitually?

3. Assuming that he performed any of such tasks habitually, did he do so

HABITUALLY FOR AT LEAST TEN (10) YEARS prior to his appointment as
COMELEC Chairman?

Given the employment or job history of respondent Monsod as appears from the
records, I am persuaded that if ever he did perform any of the tasks which constitute
the practice of law, he did not do so HABITUALLY for at least ten (10) years prior to
his appointment as COMELEC Chairman.

While it may be granted that he performed tasks and activities which could be
latitudinarianly considered activities peculiar to the practice of law, like the drafting of
legal documents and the rendering of legal opinion or advice, such were isolated
transactions or activities which do not qualify his past endeavors as "practice of law."
To become engaged in the practice of law, there must be a continuity, or a
succession of acts. As observed by the Solicitor General in People vs. Villanueva:4

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

ACCORDINGLY, my vote is to GRANT the petition and to declare respondent

Monsod as not qualified for the position of COMELEC Chairman for not having
engaged in the practice of law for at least ten (10) years prior to his appointment to
such position.

CRUZ, J., dissenting:

I am sincerely impressed by the ponencia of my brother Paras but find I must dissent
just the same. There are certain points on which I must differ with him while of
course respecting hisviewpoint.

To begin with, I do not think we are inhibited from examining the qualifications of the
respondent simply because his nomination has been confirmed by the Commission
on Appointments. In my view, this is not a political question that we are barred from
resolving. Determination of the appointee's credentials is made on the basis of the
established facts, not the discretion of that body. Even if it were, the exercise of that
discretion would still be subject to our review.

In Luego, which is cited in the ponencia, what was involved was the discretion of the
appointing authority to choose between two claimants to the same office who both
possessed the required qualifications. It was that kind of discretion that we said
could not be reviewed.

If a person elected by no less than the sovereign people may be ousted by this Court
for lack of the required qualifications, I see no reason why we cannot disqualified an
appointee simply because he has passed the Commission on Appointments.

Even the President of the Philippines may be declared ineligible by this Court in an
appropriate proceeding notwithstanding that he has been found acceptable by no
less than the enfranchised citizenry. The reason is that 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 Attempt — Member

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

following companies:

a. ACE Container Philippines, Inc.

b. Dataprep, Philippines

c. Philippine SUNsystems Products, Inc.

d. Semirara Coal Corporation

e. CBL Timber Corporation

Member of the Board of the Following:

a. Engineering Construction Corporation of the Philippines

b. First Philippine Energy Corporation

c. First Philippine Holdings Corporation

d. First Philippine Industrial Corporation

e. Graphic Atelier

f. Manila Electric Company

g. Philippine Commercial Capital, Inc.

h. Philippine Electric Corporation

i. Tarlac Reforestation and Environment Enterprises

j. Tolong Aquaculture Corporation

k. Visayan Aquaculture Corporation

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

There is nothing in the above bio-data which even remotely indicates that
respondent Monsod has given the law enough attention or a certain degree of
commitment and participation as would support in all sincerity and candor the claim
of having engaged in its practice for at least ten years. Instead of working as a
lawyer, he has lawyers working for him. Instead of giving receiving that legal advice
of legal services, he was the oneadvice and those services as an executive but not
as a lawyer.

The deliberations before the Commission on Appointments show an effort to equate

"engaged in the practice of law" with the use of legal knowledge in various fields of
endeavor such as commerce, industry, civic work, blue ribbon investigations,
agrarian reform, etc. where such knowledge would be helpful.

I regret that I cannot join in playing fast and loose with a term, which even an
ordinary layman accepts as having a familiar and customary well-defined meaning.
Every resident of this country who has reached the age of discernment has to know,
follow, or apply the law at various times in his life. Legal knowledge is useful if not
necessary for the business executive, legislator, mayor, barangay captain, teacher,
policeman, farmer, fisherman, 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:

x x x           x x x          x x x
Respondent's answers to questions propounded to him were rather
evasive. He was asked whether or not he ever prepared contracts for
the parties in real-estate transactions where he was not the procuring
agent. He answered: "Very seldom." In answer to the question as to
how many times he had prepared contracts for the parties during the
twenty-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."

x x x           x x x          x x x

Respondent takes the position that because he is a real-estate broker

he has a lawful right to do any legal work in connection with real-estate
transactions, especially in drawing of real-estate contracts, deeds,
mortgages, notes and the like. There is no doubt but that he has
engaged in these practices over the years and has charged for his
services in that connection. ... (People v. Schafer, 87 N.E. 2d 773)

x x x           x x x          x x x

... An attorney, in the most general sense, is a person designated or

employed by another to act in his stead; an agent; more especially, one
of a class of persons authorized to appear and act for suitors or
defendants in legal proceedings. Strictly, these professional persons
are attorneys at law, and non-professional agents are properly styled
"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]):

x x x           x x x          x x x

... Practice is more than an isolated appearance, for it consists in frequent or

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

It is to be noted that the Commission on Appointment itself recognizes habituality as

a required component of the meaning of practice of law in a Memorandum prepared
and issued by it, to wit:

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

Footnotes

1 Webster's 3rd New International Dictionary.

2 14 SCRA 109

3 Commission on Appointments' Memorandum dated 25 June 1991

RE: WHAT CONSTITUTES PRACTICE OF LAW, pp. 6-7.

4 14 SCRA 109.