210 repeated or customary action.

To “practice” law, or any

profession for that matter, means, to exercise or pursue an
SUPREME COURT REPORTS ANNOTATED employment or profession actively, habitually, repeatedly or
customarily. Therefore, a doctor of medicine who is employed and
Cayetano vs. Monsod is habitually performing the tasks of a nursing aide, cannot be said
to be in the “practice of medicine.” A certified public accountant
G.R. No. 100113. September 3, 1991.* 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
RENATO L. CAYETANO, petitioner, vs. CHRISTIAN MONSOD, HON. business executive or a corporate manager, other than as head or
JOVITO R. SALONGA, COMMISSION ON APPOINTMENTS, and attorney of a Legal Department of a corporation or a
HON. GUILLERMO CARAGUE, in his capacity as Secretary of governmental agency, cannot be said to be in the practice of law.
Budget and Management, respondents.
Constitutional Law; Qualifications of COMELEC Chairman; GUTIERREZ, JR., J., Dissenting:
“Practice of law” defined.—Practice of law means any activity, in
or out of court, which requires the application of law, legal Constitutional Law; Qualifications of COMELEC Chairman;
procedure, knowledge, training and experience. “To engage in the Definition of “Practice of Law".—The Constitution uses the phrase
practice of law is to perform those acts which are characteristics “engaged in the practice of law for at least ten years.” The
of the profession. Generally, to practice law is to give notice or deliberate choice of words shows that the practice envisioned is
render any kind of service, which device or service requires the active and regular, not isolated, occasional, accidental,
use in any degree of legal knowledge or skill.” (111 ALR 23) intermittent, incidental, seasonal, or extemporaneous. To be
Interpreted in the light of the various definitions of the term “engaged” in an activity for ten years requires committed
“practice of law”, particularly the modern concept of law practice, participation in something which is the result of one’s decisive
and taking into consideration the liberal construc-tion intended by choice. It means that one is occupied and involved in the
the framers of the Constitution, Atty. Monsod’s past work enterprise; one is obliged or pledged to carry it out with intent
experiences as a lawyer-economist, a lawyer-manager, a and attention during the ten-year period.
lawyerentrepreneur of industry, a lawyer-negotiator of contracts,
and a lawyer-legislator of both the rich and the poor—verily more PETITION to review the decision of the Commission on
than satisfy the constitutional requirement—that he has been Appointments.
engaged in the practice of law for at least ten years.
The facts are stated in the opinion of the Court.
Same; Same; Judicial review of judgments rendered by the
Commission on Appointments.—The Commission on the basis of      Renato L. Cayetano for and in his own behalf.
evidence submitted during the public hearings on Monsod’s
confirmation, implicitly determined that he possessed the      Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for
necessary qualifications as required by law. The judgment petitioner.
rendered by the Commission in the exercise of such an
acknowledged power is beyond judicial interference except only PARAS, J.:
upon a clear showing of a grave abuse of discretion amounting to
lack or excess of jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, We are faced here with a controversy of far-reaching proportions.
only where such grave abuse of discretion is clearly shown shall While ostensibly only legal issues are involved, the Court’s
the Court interfere with the Commission’s judgment. In the
instant case, there is no occasion for the exercise of the Court’s 212
corrective power, since no abuse, much less a grave abuse of
discretion, that would amount to lack or excess of jurisdiction and 212
would warrant the issuance of the writs prayed, for has been
clearly shown. SUPREME COURT REPORTS ANNOTATED

________________ Cayetano vs. Monsod

* EN BANC. decision in this case would indubitably have a profound effect on

the political aspect of our national existence.
211
The 1987 Constitution provides in Section 1 (1), Article IX-C:
VOL. 201, SEPTEMBER 3, 1991
“There shall be a Commission on Elections composed of a
211 Chairman and six Commissioners who shall be natural-born
citizens of the Philippines and, at the time of their appointment,
Cayetano vs. Monsod at least thirty-five years of age, holders of a college degree, and
must not have been candidates for any elective position in the
PADILLA, J., Dissenting: immediately preceding elections. However, a majority thereof,
including the Chairman, shall be members of the Philippine Bar
Constitutional Law; Qualifications of COMELEC Chairman; who have been engaged in the practice of law for at least ten
Definition of “Practice of Law".—What constitutes practice of law? years.” (Italics supplied)
As commonly understood, “practice” refers to the actual
performance or application of knowledge as distinguished from The aforequoted provision is patterned after Section 1(1), Article
mere possession of knowledge; it connotes an active, habitual, XII-C of the 1973 Constitution which similarly provides:
 management of such actions and proceedings on behalf of clients
‘There shall be an independent Commission on Elections before judges and courts, and in addition, conveying. In general,
composed of a Chairman and eight Commissioners who shall be all advice to clients, and all action taken for them in matters
naturalborn citizens of the Philippines and, at the time of their connected with the law incorporation services, assessment and
appointment, at least thirty-five years of age and holders of a condemnation services contemplating an appearance before a
college degree. However, a majority thereof, including the judicial body, the foreclosure of a mortgage, enforcement of a
Chairman, shall be mem-bers of the Philippine Bar who have been creditor’s claim in bankruptcy and insolvency proceedings, and
engaged in the practice of law for at least ten years.” (Italics conducting proceedings in attachment, and in matters of estate
supplied) and guardianship have been held to constitute law practice, as do
the preparation and drafting of legal instruments, where the work
Regrettably, however, there seems to be no jurisprudence as to done involves the determination by the trained legal mind of the
what constitutes practice of law as a legal qualification to an legal effect of facts and conditions.” (5 Am. Jr. p. 262, 263). (Italics
appointive office. supplied)

Black defines “practice of law” as: “Practice of law under modern conditions consists in no small part
of work performed outside of any court and having no immediate
“The rendition of services requiring the knowledge and the relation to proceedings in court. It embraces conveyancing, the
application of legal principles and technique to serve the interest giving of legal advice on a large variety of subjects, and the
of another with his consent. It is not limited to appearing in court, preparation and execution of legal instruments covering an
or advising and assisting in the conduct of litigation, but embraces extensive field of business and trust relations and other affairs.
the preparation of pleadings, and other papers incident to actions Although these transactions may
and special proceedings, conveyancing, the preparation of legal
instruments of all kinds, and the giving of all legal advice to 214
clients. It embraces all advice to clients and all actions taken for
them in matters connected with the law. An attorney engages in 214
the practice of law by maintaining an office where he is held out
to be an attorney, using a letterhead describing himself as an SUPREME COURT REPORTS ANNOTATED
attorney, counseling clients in legal matters. negotiating with
opposing counsel about pending litigation, and fixing and Cayetano vs. Monsod
collecting fees for services rendered by his associate.” (Black’s Law
Dictionary, 3rd ed.) have no direct connection with court proceedings, they are always
subject to become involved in litigation. They require in many
213 aspects a high degree of legal skill, a wide experience with men
and affairs, and great capacity for adaptation to difficult and
VOL. 201, SEPTEMBER 3, 1991 complex situations. These customary functions of an attorney or
counselor at law bear an intimate relation to the administration of
213 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
Cayetano vs. Monsod the work of the lawyer which involves appearance in court and
that part which involves advice and drafting of instruments in his
The practice of law is not limited to the conduct of cases in court office. It is of importance to the welfare of the public that these
(Land Title Abstract and Trust Co. v. Dworken, 129 Ohio St. 23, 193 manifold customary functions be performed by persons possessed
N.E. 650) A person is also considered to be in the practice of law of adequate learning and skill, of sound moral character; and
when he: acting at all times under the heavy trust obligations to clients
which rests upon all attorneys.” (Moran, Comments on the Rules
“x x x for valuable consideration engages in the business of of Court, Vol. 3 [1953 ed.], p. 665–666, citing In re Opinion of the
advising person, firms, associations or corporations as to their Justices [Mass.], 194 N.E. 313, quoted in Rhode Is. Bar Assoc. v.
rights under the law, or appears in a representative capacity as an Automobile Service Assoc. [R.I.] 179 A. 139, 144). (Italics ours)
advocate in proceedings pending or prospective, before any court,
commissioner, referee, board, body, committee, or commission The University of the Philippines Law Center in conducting
constituted by law or authorized to settle controversies and there, orientation briefing for new lawyers (1974–1975) listed the
in such representative capacity performs any act or acts for the dimensions of the practice of law in even broader terms as
purpose of obtaining or defending the rights of their clients under advocacy, counselling and public service.
the law. Otherwise stated, one who, in a representative capacity,
engages in the business of advising clients as to their rights under “One may be a practicing attorney in following any line of
the law, or while so engaged performs any act or acts either in employment in the profession. If what he does exacts knowledge
court or outside of court for that purpose, is engaged in the of the law and is of a kind usual for attorneys engaging in the
practice of law.” (State ex. rel. Mckittrick v, C.S. Dudley and Co., active practice of their profession, and he follows some one or
102 S.W. 2d 895, 340 Mo. 852) 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
This Court in the case of Philippine Lawyers Association v. Agrava, 312)
(105 Phil. 173, 176–177) stated:
Practice of law means any activity, in or out of court, which
“The practice of law is not limited to the conduct of cases or requires the application of law, legal procedure, knowledge,
litigation in court; it embraces the preparation of pleadings and training and experience. “To engage in the practice of law is to
other papers incident to actions and special proceedings, the perfom 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 “MR. FOZ. Yes, Mr. Presiding Officer.
legal knowledge or skill.” (111 ALR 23)
“MR. OPLE. Thank you.”
The following records of the 1986 Constitutional Commission
show that it has adopted a liberal interpretation of the term x x (Italics supplied)
“practice of law.”
216
215
216
VOL. 201, SEPTEMBER 3, 1991
SUPREME COURT REPORTS ANNOTATED
215
Cayetano vs. Monsod
Cayetano vs. Monsod
Section 1(1), Article IX-D of the 1987 Constitution, provides,
“MR. FOZ. Before we suspend the session, may I make a among others, that the Chairman and two Commissioners of the
manifestation which I forgot to do during our review of the Commission on Audit (COA) should either be certified public
provisions on the Commission on Audit. May I be allowed to make accountants with not less than ten years of auditing practice, or
a very brief statement? , -. . .. members of the Philippine Bar who have been engaged in the
practice of law for at least ten years. (italics supplied)
“THE PRESIDING OFFICER (Mr. Jamir).
Corollary to this is the term “private practitioner'' and which is in
The Commissioner will please proceed. many ways synonymous with the word “lawyer.” Today, although
many lawyers do not engage in private practice, it is still a fact
“MR. FOZ. This has to do with the qualifications of the members of that the majority of lawyers are private practitioners. (Gary
the Commission on Audit Among others, the qualifications Munneke, Opportunities in Law Careers [VGM Career Horizons:
provided for by Section 1 is that ‘They must be Members of the Illinois), 1986], p. 15]).
Philippine Bar—I am quoting from the provision—'who have been
engaged in the practice of law for at least ten years/” At this point, it might be helpful to define private practice. The
term, as commonly understood, means “an individual or
“To avoid any misunderstanding which would result in excluding organization engaged in the business of delivering legal services.”
members of the Bar who are now employed in the COA or (Ibid.). Lawyers who practice alone are often called “sole
Commission on Audit, we would like to make the clarification that practitioners.” Groups of lawyers are called “firms.” The firm is
this provision on qualifications regarding members of the Bar does usually a partnership and members of the firm are the partners,
not necessarily refer or involve actual practice of law outside the Some firms may be organized as professional corporations and
COA We have to interpret this to mean that as long as the lawyers the members called shareholders. In either case, the members of
who are employed in the COA are using their legal knowledge or the firm are the experienced attorneys. In most firms, there are
legal talent in their respective work within COA, then they are younger or more inexperienced salaried attorneys called
qualified to be considered for appointment as members or “associates.” (Ibid.).
commissioners, even chairman, of the Commission on Audit.
The test that defines law practice by looking to traditional areas of
“This has been discussed by the Committee on Constitutional law practice is essentially tautologous, unhelpful defining the
Commissions and Agencies and we deem it important to take it up practice of law as that which lawyers do. (Charles W. Wolfram,
on the floor so that this interpretation may be made available Modern Legal Ethics [West Publishing Co.: Minnesota, 1986], p.
whenever this provision on the qualifications as regards members 593). The practice of law is defined as “the performance of any
of the Philippine Bar engaging in the practice of law for at least acts . .. . in or out of court, commonly understood to be the
ten years is taken up. practice of law. (State Bar Ass’n v. Connecticut Bank & Trust Co.,
145 Conn. 222, 140 A.2d 863, 870 [1958] [quoting Grievance
“MR. OPLE. Will Commissioner Foz yield to just one question. Comm. v. Payne, 128 Conn. 325, 22 A.2d 623, 626 [1941]).
Because lawyers perform almost every function known in the
“MR. FOZ. Yes, Mr. Presiding Officer. commercial and governmental realm, such a definition would
obviously be too global to be workable. (Wolfram, op. cit).
“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 The appearance of a lawyer in litigation in behalf of a client is at
set forth in the Article on the Commission on Audit? once the most publicly familiar role for lawyers as well as an
uncommon role for the average lawyer. Most lawyers spend
‘MR. FOZ. We must consider the fact that the work of COA,
although it is auditing, will necessarily involve legal work; it will 217
involve legal work. And, therefore, lawyers who are employed in
COA now would have the necessary qualifications in accordance VOL. 201, SEPTEMBER 3, 1991
with the provision on qualifications under our provisions on the
Commission on Audit. And, therefore. the answer is yes, 217

“MR. OPLE. Yes. So that the construction given to this is that this is Cayetano vs. Monsod
equivalent to the practice of law.
little time in courtrooms, and a large percentage spend their practice, a departure from the traditional concept of practice of
entire practice without litigating a case. (Ibid., p. 593). law.
Nonetheless, many lawyers do continue to litigate and the
litigating lawyer’s role colors much of both the public image and We are experiencing today what truly may be called a
the selfperception of the legal profession. (Ibid.). revolutionary transformation in corporate law practice. Lawyers
and other professional groups, in particular those members
In this regard thus, the dominance of litigation in the public mind participating in various legal-policy decisional contexts, are finding
reflects history, not reality. (Ibid.). Why is this so? Recall that the that understanding the major emerging trends in corporation law
late Alexander SyCip, a corporate lawyer, once articulated on the is indispensable to intelligent decision-making.
importance of a lawyer as a business counselor in this wise: “Even
today, there are still uninformed laymen whose concept of an Constructive adjustment to major corporate problems of today
attorney is one who principally tries cases before the courts. The requires an accurate understanding of the nature and implications
members of the bench and bar and the informed laymen such as of the corporate law research function accompanied by an
businessmen, know that in most developed societies today, accelerating rate of information accumulation. The recognition of
substantially more legal work is transacted in law offices than in the need for such improved corporate legal policy formulation,
the courtrooms. General practitioners of law who do both particularly “modelmaking” and “contingency planning,” has
litigation and non-litigation work also know that in most cases impressed upon us the inadequacy of traditional procedures in
they find themselves spending more time doing what [is] loosely many decisional contexts.
describe[d] as business counseling: than in trying cases. The
business lawyer has been described as the planner, the In a complex legal problem the mass of information to be
diagnostician and the trial lawyer, the surgeon. I[t] need not [be] processed, the sorting and weighing of significant conditional
stress[ed] that in law, as in medicine, surgery should be avoided factors, the appraisal of major trends, the necessity of estimating
where internal medicine can be effective.” (Business Star, the consequences of given courses of action, and the need for fast
“Corporate Finance Law/' Jan. 11,1989, p. 4). decision and response in situations of acute danger have
prompted the use of sophisticated concepts of information flow
In the course of a working day the average general practitioner theory, operational analysis, automatic data processing, and
will engage in a number of legal tasks, each involving different electronic computing equipment. Understandably, an improved
legal doctrines, legal skills, legal processes, legal institutions, decisional structure must stress the predictive component of the
clients, and other interested parties. Even the increasing numbers policy-making process, wherein a “model”, of the decisional
of lawyers in specialized practice will usually perform at least context or a segment thereof is developed to test projected
some legal services outside their specialty. And even within a alternative courses of action in terms of futuristic effects flowing
narrow specialty such as tax practice, a lawyer will shift from one therefrom.
legal task or role such as advice-giving to an importantly different
one such as representing a client before an administrative agency. Although members of the legal profession are regularly engaged
(Wolfram, supra, p 687). in predicting and projecting the trends of the law, the subject of
corporate finance law has received relatively little organized and
By no means will most of this work involve litigation, unless the
lawyer is one of the relatively rare types—a litigator who 219
specializes in this work to the exclusion of much else. Instead, the
work will require the lawyer to have mastered the full range of VOL. 201, SEPTEMBER 3, 1991
traditional lawyer skills of client counselling, advice-giving,
document drafting, and negotiation. And increasingly lawyers find 219
that the new skills of evaluation and mediation are both
Cayetano vs. Monsod
218
formalized attention in the philosophy of advancing corporate
218 legal education. Nonetheless, a cross-disciplinary approach to
legal research has become a vital necessity.
SUPREME COURT REPORTS ANNOTATED
Certainly, the general orientation for productive contributions by
Cayetano vs. Monsod those trained primarily in the law can be improved through an
early introduction to multi-variable decisional contexts and the
effective for many clients and a source of employment. (Ibid.). various approaches for handling such problems. Lawyers,
particularly with either a master’s or doctorate degree in business
Most lawyers will engage in non-litigation legal work or in administration or management, functioning at the legal policy
litigation work that is constrained in very important ways, at least level of decision-making now have some appreciation for the
theoretically, so as to remove from it some of the salient features concepts and analytical techniques of other professions which are
of adversarial litigation. Of these special roles, the most currently engaged in similar types of complex decision-making.
prominent is that of prosecutor. In some lawyers’ work the
constraints are imposed both by the nature of the client and by Truth to tell, many situations involving corporate finance
the way in which the lawyer is organized into a social unit to problems would require the services of an astute attorney
perform that work. The most common of these roles are those of because of the complex legal implications that arise from each
corporate practice and government legal service. (Ibid.). and every necessary step in securing and maintaining the business
issue raised. (Business Star, “Corporate Finance Law,” Jan.
In several issues of the Business Star, a business daily, 11,1989, p. 4).
hereinbelow quoted are emerging trends in corporate law
In our litigation-prone country, a corporate lawyer is assiduously Corporation Code and the Securities Code but an incursion as well
referred to as the “abogado de campanilla.” He is the “big-time” into the intertwining modern management issues.
lawyer, earning big money and with a clientele composed of the
tycoons and magnates of business and industry. Such corporate legal management issues deal primarily with three
(3) types of learning: (1) acquisition of insights into current
Despite the growing number of corporate lawyers, many people advances which are of particular significance to the corporate
could not explain what it is that a corporate lawyer does. For one, counsel; (2) an introduction to usable disciplinary skills applicable
the number of attorneys employed by a single corporation will to a corporate counsel’s management responsibilities; and (3) a
vary with the size and type of the corporation. Many smaller and devotion to the organization and management of the legal
some large corporations farm out all their legal problems to function itself.
private law firms, Many others have in-house counsel only for
certain matters. Other corporation have a staff large enough to These three subject areas may be thought of as intersecting
handle most legal problems in-house. circles, with a shared area linking them. Otherwise known as
“intersecting managerial jurisprudence,” it forms a unifying theme
A corporate lawyer, for all intents and purposes, is a lawyer who for the corporate counsel’s total learning.
handles the legal affairs of a corporation. His areas of concern or
jurisdiction may include, inter alia: corporate legal research, tax Some current advances in behavior and policy sciences affect the
laws research, acting out as corporate secretary (in board counsel’s role. For that matter, the corporate lawyer reviews the
meetings), appearances in both courts and other adjudicatory globalization process, including the resulting strategic
agencies (including the Securities and Exchange Commission). and repositioning that the firms he provides counsel for are required
in other capacities which require an ability to deal with the law. to make, and the need to think about a corporation’s strategy at
multiple levels. The salience of the nation-state is being reduced
At any rate, a corporate lawyer may assume responsibilities other as firms deal both with global multinational entities and
than the legal affairs of the business of the corporation he is simultaneously with sub-national governmental units. Firms
representing. These include such matters as determining policy increasingly collaborate not only with public entities but with each
and becoming involved in management. (Italics supplied.) other—often with those who are competitors in other arenas.

In a big company, for example, one may have a feeling of being 221
isolated from the action, or not understanding how one’s work
actually fits into the work of the organization. This can be VOL. 201, SEPTEMBER 3, 1991
frustrating to someone who needs to see the results of his work
first hand. In short, 221

220 Cayetano vs. Monsod

220 Also, the nature of the lawyer’s participation in decision-making

within the corporation is rapidly changing. The modern corporate
SUPREME COURT REPORTS ANNOTATED lawyer has gained anew role as a stakeholder—in some cases
participating in the organization and operations of governance
Cayetano vs. Monsod through participation on boards and other decision-making roles.
Often these new patterns develop alongside existing legal
a corporate lawyer is sometimes offered this fortune to be more institutions and laws are perceived as barriers. These trends are
closely involved in the running of the business. complicated as corporations organize for global operations. (Italics
supplied)
Moreover, a corporate lawyer’s services may sometimes be
engaged by a multinational corporation (MNC). Some large MNCs The practising lawyer of today is with governmental policies
provide one of the few opportunities available to corporate toward the promotion and management of technology. New
lawyers to enter the international law field. After all, international collaborative arrangements for promoting specific technologies or
law is practiced in a relatively small number of companies and law competitiveness more generally require approaches from industry
firms. Because working in a foreign country is perceived by many that differ from older, more adversarial relationships and
as glamorous, this is an area coveted by corporate lawyers. In traditional forms of seeking to influence governmental policies.
most cases, however, the overseas jobs go to experienced And there are lessons to be learned from other countries. In
attorneys while the younger attorneys do their “international Europe, Esprit, Eureka and Race are examples of collaborative
practice” in law libraries. (Business Star, “Corporate Law Practice,” efforts between governmental and business Japan’s MITI is world
May 25, 1990, p. 4). famous. (Italics supplied)

This brings us to the inevitable, i.e., the role of the lawyer in the Following the concept of boundary spanning, the office of the
realm of finance. To borrow the lines of Harvard-educated lawyer Corporate Counsel comprises a distinct group within the
Bruce Wassertein, to wit: “A bad lawyer is one who fails to spot managerial structure of all kinds of organizations. Effectiveness of
problems, a good lawyer is one who perceives the difficulties, and both long-term and temporary groups within organizations has
the excellent lawyer is one who surmounts them.” (Business Star, been found to be related to indentifiable factors in the group-
“Corporate Finance Law,” Jan. 11,1989, p. 4). context interaction such as the groups actively revising their
knowledge of the environment, coordinating work with outsiders.
Today, the study of corporate law practice direly needs a “shot in promoting team achievements within the organization. In general,
the arm,” so to speak. No longer are we talking of the traditional such external activities are better predictors of team performance
law teaching method of confining the subject study to the than internal group processes,
 most vibrant subsets of the legal profession. The corporate
“In a crisis situation, the legal managerial capabilities of the counsel hear responsibility for key aspects of the firm’s strategic
corporate lawyer vis-a-vis the managerial mettle of corporations issues, including structuring its global operations, managing
are challenged. Current research is seeking ways both to improved relationships with an increasingly diversified body of
anticipate effective managerial procedures and to understand employees, managing expanded liability exposure, creating new
relationships of financial liability and insurance considerations, and varied interactions with public decision-makers, coping
(Italics supplied) internally with more complex make or by decisions.

Regarding the skills to apply by the corporate counsel, three This whole exercise drives home the thesis that knowing
factors are apropos: corporate law is not enough to make one a good general
corporate counsel nor to give him a full sense of how the legal
First System Dynamics, The field of systems dynamics has been system shapes corporate activities. And even if the corporate
found an effective tool for new managerial thinking regarding lawyer’s aim is not the understand all of the law’s effects on
both planning and pressing immediate problems. An corporate activities, he must, at the very least, also gain a working
understanding of the role of feedback loops, inventory levels, and knowledge of the management issues if only to be able to grasp
rates of flow, enable users to simulate all sorts of systematic not only the basic legal “constitution” or makeup of the modern
problems—physical, economic, managerial, social, and corporation. “Business Star, “The Corporate Counsel,” April 10,
psychological. New programming techniques now make the 1991, p. 4).
systems dynamics principles more accessible to managers—
including corporate counsels. (Italics supplied) The challenge for lawyers (both of the bar and the bench) is to
have more than a passing knowledge of financial law affecting
Second Decision Analysis. This enables users to make better each
decisions involving complexity and uncertainty. In the context of a
law department, it can be used to appraise the settlement value 223
of litigation,
VOL. 201, SEPTEMBER 3, 1991
222
223
222
Cayetano vs. Monsod
SUPREME COURT REPORTS ANNOTATED
aspect of their work, Yet, many would admit to ignorance of vast
Cayetano vs. Monsod tracts of the financial law territory. What transpires next is a
dilemma of professional security: Will the lawyer admit ignorance
aid in negotiation settlement, and minimize the cost and risk and risk opprobrium?; or will he feign understanding and risk
involved in managing a portfolio of cases, (Italics supplied) exposure? (Business Star, “Corporate Finance law,” Jan. 11, 1989,
p. 4).
Third Modeling for Negotiation Management Computer-based
models can be used directly by parties and mediators in all kinds Respondent Christian Monsod was nominated by President
of negotiations. All integrated set of such tools provide coherent Corazon C. Aquino to the position of Chairman of the COMELEC in
and effective negotiation support, including hands-on on a letter received by the Secretariat of the Commission on
instruction in these techniques. A simulation case of an Appointments on April 25, 1991. Petitioner opposed the
international joint venture may be used to illustrate the point. nomination because allegedly Monsod does not possess the
required qualification of having been engaged in the practice of
[Be this as it may,] the organization and management of the legal law for at least ten years.
function, concern three pointed areas of consideration, thus:
On June 5, 1901,' the Commission on Appointments confirmed the
Preventive Lawyering. Planning by lawyers requires special skills nomination of Monsod as Chairman of the COMELEC. On June
that comprise a major part of the general counsel’s 18,1991, he took his oath of office. On the same day, he assumed
responsibilities. They differ from those of remedial law. Preventive office as Chairman of the COMELEC.
lawyering is concerned with minimizing the risks of legal trouble
and maximizing legal rights for such legal entities at that time Challenging the validity of the confirmation by the Commission on
when transactional or similar facts are being considered and Appointments of Monsod’s nomination, petitioner as a citizen and
made. taxpayer, filed the instant petition for Certiorari and Prohibition
praying that said confirmation and the consequent appointment
Managerial Jurisprudence. This is the framework within which are of Monsod as Chairman of the Commission on Elections be
undertaken those activities of the firm to which legal declared null and void.
consequences attach. It needs to be directly supportive of this
nation’s evolving economic and organizational fabric as firms Atty. Christian Monsod is a member of the Philippine Bar, having
change to stay competitive in a global, interdependent passed the bar examinations of 1960 with a grade of 86.55%. He
environment. The practice and theory of “law” is not adequate has been a dues paying member of the Integrated Bar of the
today to facilitate the relationships needed in trying to make a Philippines since its inception in 1972–73. He has also been paying
global economy work. his professional license fees as lawyer for more than ten years. (p.
124, Rollo)
Organization and Functioning of the Corporate Counsel’s Office.
The general counsel has emerged in the last decade as one of the
After graduating from the College of Law (U.P.) and having
hurdled the bar, Atty. Monsod worked in the law office of his 225
father. During his stint in the World Bank Group (1963–1970),
Monsod worked as an operations officer for about two years in VOL. 201, SEPTEMBER 3, 1991
Costa Rica and Panama, which involved getting acquainted with
the laws of member-countries, negotiating loans and coordinating 225
legal, economic, and project work of the Bank. Upon returning to
the Philippines in 1970, he worked with the Meralco Group, Cayetano vs. Monsod
served as chief executive officer of an investment bank and
subsequently of a business conglomerate, and since 1986, has policies as key factors in maintaining their countries’ sovereignty.
rendered services to various companies as a legal and (Condensed from the work paper, entitled “Wanted;
Development Lawyers for Developing Nations,” submitted by L.
224 Michael Hager, regional legal adviser of the United States Agency
for International Development, during the Session on Law for the
224 Development of Nations at the Abidjan World Conference in Ivory
Coast, sponsored by the World Peace Through Law Center on
SUPREME COURT REPORTS ANNOTATED August 26–31 , 1973). 1973). (Italics supplied)

Cayetano vs. Monsod Loan concessions and compromises, perhaps even more so than
purely renegotiation policies, demand expertise in the law of
economic consultant or chief executive officer. As former contracts, in legislation and agreement drafting and in
Secretary-General (1986) and National Chairman (1987) of renegotiation. Necessarily, a sovereign lawyer may work with an
NAMFREL. Monsod’s work involved being knowledgeable In international business specialist or an economist in the
election law. He appeared for NAMFREL in its accreditation formulation of a model loan agreement. Debt restructuring
hearings before the Comelec. In the field of advocacy, Monsod, in contract agreements contain such a mixture of technical language
his personal capacity and as former Co-Chairman of the Bishops that they should be carefully drafted and signed only with the
Businessmen’s Conference for Human Development, has worked advise of competent counsel in conjunction with the guidance of
with the under privileged sectors, such as the farmer and urban adequate technical support personnel. (See International Law
poor groups, in initiating, lobbying for and engaging in affirmative Aspects of the Philippine External Debts, an unpublished
action for the agrarian reform law and lately the urban land dissertation, U.S.T. Graduate School of Law, 1987, p. 321). (Italics
reform bill. Monsod also made use of his legal knowledge as a supplied)
member of the Davide Commission, a quasijudicial body, which
conducted numerous hearings (1990) and as a member of the A critical aspect of sovereign debt restructuring/contract
Constitutional Commission (1986–1987), and Chairman of its construction is the set of terms and conditions which determines
Committee on Accountability of Public Officers, for which he was the contractual remedies for a failure to perform one or more
cited by the President of the Commission, Justice Cecilia Muñoz- elements of the contract. A good agreement must not only define
Palma for “innumerable amendments to reconcile government the responsibilities of both parties, but must also state the
functions with individual freedoms and public accountability and recourse open to either party when the other fails to discharge an
the party-list system for the House of Representative.” (pp. 128– obligation. For a compleat debt restructuring represents a
129 Rollo) (Italics supplied) devotion to that principle which in the ultimate analysis is sine
qua non for foreign loan agreements—an adherence to the rule of
Just a word about the work of a negotiating team of which Atty. law in domestic and international affairs of whose kind U.S.
Monsod used to be a member, Supreme Court Justice Oliver Wendell Holmes, Jr. once said: “They
carry no banners, they beat no drums; but where they are, men
In a loan agreement, for instance, a negotiating panel acts as a learn that bustle and bush are not the equal of quiet genius and
team, and which is adequately constituted to meet the various serene mastery.’ (See Ricardo J. Romulo, “The Role of Lawyers in
contingencies that arise during a negotiation. Besides top officials Foreign Investments,” Integrated Bar of the Philippine Journal,
of the Borrower concerned, there are the legal officer (such as the Vol. 15, Nos. 3 and 4, Third
legal counsel), the finance manager, and an operations officer
(such as an official involved in negotiating the contracts) who Interpreted in the light of the various definitions of the term
comprise the members of the team. (Guillermo V. Soliven, “Loan “practice of law”, particularly the modern concept of law practice,
Negotiating Strategies for Developing Country Borrowers,” Staff and taking into consideration the liberal construction intended by
Paper No. 2, Central Bank of the Philippines, Manila, 1982, p. 11). the framers of the Constitution, Atty. Monsod’s past work
(Italics supplied) experiences as a lawyer-economist, a lawyer-manager, a lawyer-
entrepreneur of industry, a lawyer-negotiator of contracts, and a
After a fashion, the loan agreement is like a country’s Iawyer-legislator of both the rich and the poor—verily more than
Constitution; it lays down the law as far as the loan transaction is satisfy the constitutional requirement—that he
concerned. Thus, the meat of any Loan Agreement can be
compartmentalized into five (5) fundamental parts: (1) business 226
terms; (2) borrower’s representation; (3) conditions of closing; (4)
covenants; and (5) events of default. (Ibid., p. 13), 226

In the same vein, lawyers play an important role in any debt SUPREME COURT REPORTS ANNOTATED
restructuring program. For aside from performing the tasks of
legislative drafting and legal advising, they score national Cayetano vs. Monsod
development
has been engaged in the practice of law for at least ten years. connotation is exactly what was intended by the eminent framers
of the 1987 Constitution. Moreover, Justice Padilla’s definition
Besides in the leading case of Luego v. Civil Service Commission, would require generally a habitual law practice, perhaps practised
143 SCRA 327, the Court said: 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
“Appointment is an essentially discretionary power and must be from the constitutional intent.
performed by the officer in which it is vested according to his best
lights, the only condition being that the appointee should possess Upon the other hand, the separate opinion of Justice Isagani Cruz
the qualifications required by law. If he does, then the states that in my written opinion, I made use of a definition of law
appointment cannot be faulted on the ground that there are practice which really means nothing because the definition says
others better qualified who should have been preferred. This is a that law practice " ... is what people ordinar-ily mean by the
political question involving considerations of wisdom which only practice of law.” True I cited the definition but only by way of
the appointing authority can decide."(emphasis supplied) sarcasm as evident from my statement that the definition of law
practice by “traditional areas of law practice is essentially
No less emphatic was the Court in the case of Central Bank v. Civil tautologous” or defining a phrase by means of the phrase itself
Service Commission, 171 SCRA 744) where it stated: that is being defined.

“It is well-settled that when the appointee is qualified, as in this Justice Cruz goes on to say in substance that since the law covers
case, and all the other legal requirements are satisfied, the almost all situations, most individuals, in making use of the law, or
Commission has no alternative but to attest to the appointment in in advising others on what the law means, are actually practicing
accordance with the Civil Service Law. The Commission has no law. In that sense, perhaps, but we should not lose sight of the
authority to revoke an appointment on the ground that another fact that Mr. Monsod is a lawyer, a member of the Philippine Bar,
person is more qualified for a particular position. It also has no who has been practising law for over ten years. This is different
authority to direct the appointment of a substitute of its choice. from the acts of persons practising law, without first becoming
To do so would be an encroachment on the discretion vested lawyers.
upon the appointing authority. An appointment is essentially
within the discretionary power of whomsoever it is vested, Justice Cruz also says that the Supreme Court can even disqualify
subject to the only condition that the appointee should possess an elected President of the Philippines, say, on the ground that he
the qualifications required by law.” (Italics supplied) lacks one or more qualifications. This matter, I greatly doubt. For
one thing, how can an action or petition be brought against the
The appointing process in a regular appointment as in the case at President? And even assuming that he is
bar, consists of four (4) stages: (1) nomination; (2) confirmation by
the Commission on Appointments; (3) issuance of a commission 228
(in the Philippines, upon submission by the Commission on
Appointments of its certificate of confirmation, the President 228
issues the permanent appointment; and (4) acceptance e.g., oath-
taking, posting of bond, etc. . . . (Lacson v. Romero, No. L-3081, SUPREME COURT REPORTS ANNOTATED
October 14,1949; Gonzales, Law on Public Officers, p. 200)
Cayetano vs. Monsod
The power of the Commission on Appointments to give its
consent to the nomination of Monsod as Chairman of the indeed disqualified, how can the action be entertained since he is
Commission on Elections is mandated by Section 1(2) Sub-Article the incumbent President?
C, Article IX of the Constitution which provides:
We now proceed:
227
The Commission on the basis of evidence submitted during the
VOL. 201, SEPTEMBER 3, 1991 public hearings on Monsod’s confirmation, implicitly determined
that he possessed the necessary qualifications as required by law.
227 The judgment rendered by the Commission in the exercise of such
an acknowledged power is beyond judicial interference except
Cayetano vs. Monsod only upon a clear showing of a grave abuse of discretion
amounting to lack or excess of jurisdiction. (Art. VIII, Sec. 1
“The Chairman and the Commissioners shall be appointed by the Constitution). Thus, only where such grave abuse of discretion is
President with the consent of the Commission on Appointments clearly shown shall the Court interfere with the Commission’s
for a term of seven years without reappointment. Of those first judgment. In the instant case, there is no occasion for the exercise
appointed, three Members shall hold office for seven years, two of the Court’s corrective power, since no abuse, much less a grave
Members for five years, and the last Members for three years, abuse of discretion, that would amount to lack or excess of
without reappointment, Appointment to any vacancy shall be only jurisdiction and would warrant the issuance of the writs prayed,
for the unexpired term of the predecessor. In no case shall any for has been clearly shown.
Member be appointed or designated in a temporary or acting
capacity.” Additionally, consider the following;

Anent Justice Teodoro Padilla’s separate opinion, suffice it to say (1)If the Commission on Appointments rejects a nominee by the
that his definition of the practice of law is the traditional or President, may the Supreme Court reverse the Commission, and
stereotyped notion of law practice, as distinguished from the thus in effect confirm the appointment? Clearly, the answer is in
modern concept of the practice of law, which modern the negative.
(2)In the same vein, may the Court reject the nominee, whom the
Commission has confirmed? The answer is likewise clear. I concur with the decision of the majority written by Mr. Justice
(3)If the United States Senate (which is the confirming body in the Paras, albeit only in the result; it does not appear to me that there
U.S. Congress) decides to confirm a Presidential nominee, it would has been an adequate showing that the challenged determination
be incredible that the U.S. Supreme Court would still reverse the by the Commission on Appointments -that the appointment of
U.S. Senate. respondent Monsod as Chairman of the Commission on Elections
Finally, one significant legal maxim is: should, on the basis of his stated qualifications and after due
assessment thereof, be confirmed—was
“We must interpret not by the letter that killeth, but by the spirit
that giveth life/' 230

Take this hypothetical case of Samson and Delilah. Once, the 230
procurator of Judea asked Delilah (who was Samson’s beloved) for
help in capturing Samson. Delilah agreed on condition that— SUPREME COURT REPORTS ANNOTATED

229 Cayetano vs. Monsod

VOL. 201, SEPTEMBER 3, 1991 attended by error so gross as to amount to grave abuse of
discretion and consequently merits nullification by this Court in
229 accordance with the second paragraph of Section 1, Article VIII of
the Constitution. I therefore vote to DENY the petition.
Cayetano vs. Monsod
DISSENTING OPINION
“No blade shall touch his skin; PADILLA, J.:

No blood shall flow from his veins.” 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
When Samson (his long hair cut by Delilah) was captured, the respondents to comment on the Petition, but I was the sole vote
procurator placed an iron rod burning white-hot two or three for the issuance of a temporary restraining order to enjoin
inches away from in front of Samson’s eyes. This blinded the man. respondent Monsod from assuming the position of COMELEC
Upon hearing of what had happened to her beloved, Delilah was Chairman, while the Court deliberated on his constitutional
beside herself with anger, and fuming with righteous fury, qualification for the office. My purpose in voting for a TRO was to
accused the procurator of reneging on his word. The procurator prevent the inconvenience and even embarrassment to all parties
calmly replied: “Did any blade touch his skin? Did any blood flow concerned were the Court to finally decide for respondent
from his veins?” The procurator was clearly relying on the letter, Monsod’s disqualification. Moreover. a reading of the Petition
not the spirit of the agreement. then in relation to established jurisprudence already showed
prima facie that respondent Monsod did not possess the needed
In view of the foregoing, this petition is hereby DISMISSED. qualification, that is, he had not engaged in the practice of law for
at least ten (10) years prior to his appointment as COMELEC
SO ORDERED. Chairman.

     Fernan (C.J.), Griño-Aquino and Medialdea, JJ., concur. After considering carefully respondent Monsod’s comment, I am
even more convinced that the constitutional requirement of
     Narvasa, J., See brief concurrence. “practice of law for at least ten (10) years” has not been met.

     Melencio-Herrera, J., In the result, 011 the same basis as The procedural barriers interposed by respondents deserve scant
Justice Narvasa. consideration because, ultimately, the core issue to be resolved in
this petition is the proper construal of the constitutional provision
     Gutierrez, Jr., Cruz and Padilla, JJ., see dissents. requiring a majority of the membership of COMELEC, including
the Chairman thereof to “have been engaged in the practice of
     Feliciano, J., I certify that he voted to dismiss the petition. law for at least ten (10) years.” (Art. IX(C), Section 1(1), 1987
(Fernan, C.J.) Constitution). Questions involving the construction of
constitutional provisions are best left to judicial resolution. As
     Bidin, J., I join in the dissent of Justice Gutierrez. declared in Angara v, Electoral Commission, (63 Phil. 139) “upon
the judicial department is thrown the solemn and inescapable
     Sarmiento, J., On leave. obligation of interpreting the Constitution and defining
constitutional boundaries.”
     Regalado, J., No part due to intended personal association with
respondent Monsod. 231

     Davide, Jr., J., No part, I was among those who issued a VOL. 201, SEPTEMBER 3, 1991
testimonial in favor of Christian Monsod which was submitted by
him to CA. 231

CONCURRENCE Cayetano vs. Monsod

NERVASA, J.:
The Constitution has imposed clear and specific standards for a kind. In other words, it is a habitual exercise (People v, Villanueva,
COMELEC Chairman. Among these are that he must have been 14 SCRA 109 citing State v. Cotner, 127, p; 1, 87 Kan, 864).
“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 2.Compensation. Practice of law implies that one must have
and complied with. presented himself to be in the active and continued practice of
the legal profession and that his professional services are
What constitutes practice of law? As commonly understood, available to the public for compensation, as a service of his
“practice” refers to the actual performance or application of livelihood or in consideration of his said services. (People v.
knowledge as distinguished from mere possession of knowledge: Villanueva, supra). Hence, charging for services such as
it connotes an active, habitual, repeated or customary action.1 To preparation of documents involving the use of legal knowledge
“practice” law, or any profession for that matter, means, to and skill is within the term ‘practice of law’ (Ernani Paño, Bar
exercise or pursue an employment or profession actively, Reviewer in Legal and Judicial Ethics, 1988 ed., p. 8 citing People v.
habitually, repeatedly or customarily. People’s Stockyards State Bank, 176 N.B. 901) and, one who
renders an opinion as to the proper interpretation of a statute,
Therefore, a doctor of medicine who is employed and is habitually and receives pay for it, is to that extent, practicing law (Martin,
performing the tasks of a nursing aide, cannot be said to be in the supra, p. 806 citing Mendelaun v. Gilbert and Barket Mfg. Co., 290
“practice of medicine.” A certified public accountant who works as N.Y.S. 462) If compensation is expected, ‘all advice to clients and
a clerk, cannot be said to practice his profession as an accountant. all action taken for them in matters connected with the law; are
In the same way, a lawyer who is employed as a business practicing law. (Elwood Fitchette et al., v. Arthur C. Taylor, 94 A-
executive or a corporate manager, other than as head or attorney L.R. 356–359)
of a Legal Department of a corporation or a governmental agency, 3.Application of law, legal principle, practice, or procedure which
cannot be said to be in the practice of law. calls for legal knowledge, training and experience is within the
term ‘practice of law’. (Martin supra)
As aptly held by this Court in the case of People vs. Villanueva.2 4.Attorney-client relationship. Engaging in the practice of law
presupposes the existence of lawyer-client relationship. Hence,
“Practice “Practice is more than an isolated appearance for it where a lawyer undertakes an activity which requires knowledge
consists in frequent or customary actions, a succession of acts of of law but involves no attorney-client relationship, such as
the same kind. In other words, it is frequent habitual exercise teaching law or writing law books or articles, he cannot be said to
(State vs. Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). be engaged in the practice of his profession or a lawyer (Agpalo,
Practice of law to fall within the prohibition of statute has been Legal Ethics, 1989 ed., p. 30).”3
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.) x x x” (italics 3 Commission on Appointments’ Memorandum dated 25 June
supplied). 1991 RE: WHAT CONSTITUTES PRACTICE OF LAW, pp. 6–7.

It is worth mentioning that the respondent Commission on 233

Appointments in a Memorandum it prepared, enumerated several
factors determinative of whether a particular activity constitutes VOL. 201, SEPTEMBER 3, 1991
“practice of law.” It states:
233
________________
Cayetano vs. Monsod
1 Webster’s 3rd New International Dictionary.
The above-enumerated factors would, I believe, be useful aids in
2 14 SCRA 109. determining whether or not respondent Monsod meets the
constitutional qualification of practice of law for at least ten (10)
232 years at the time of his appointment as COMELEC Chairman.

232 The following relevant questions may be asked:

SUPREME COURT REPORTS ANNOTATED 1.Did respondent Monsod perform any of the tasks which are
peculiar to the practice of law?
Cayetano vs. Monsod 2.Did respondent perform such tasks customarily or habitually?
3.Assuming that he performed any of such tasks habitually, did he
“1.Habituality. The term ‘practice of law’ implies customarily or do so HABITUALLY FOR AT LEAST TEN (10) YEARS prior to his
habitually holding one’s self out to the public as a lawyer (People appointment as COMELEC Chairman?
vs. Villanueva, 14 SCRA 109 citing State v. Boyen, 4 S.E. 522, 98 Given the employment or job history of respondent Monsod as
N.C. 644) such as when one sends a circular announcing the appears from the records, I am persuaded that if ever he did
establishment of a law office for the general practice of law (U.S. perform any of the tasks which constitute the practice of law, he
v. Ney Bosque, 8 Phil. 146), or when one takes the oath of office did not do so HABITUALLY for at least ten (10) years prior to his
as, a lawyer before a notary public, and files a manifestation with appointment as COMELEC Chairman.
the Supreme Court informing it of his intention to practice law in
all courts in the country (People v. De Luna, 102 Phil. 968). While it may be granted that he performed tasks and activities
Practice is more than an isolated appearance for it consists in which could be latitudinarianly considered activities peculiar to
frequent or customary action, a succession of acts of the same 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 embraced in the term, I have the uncomfortable feeling that one
as “practice of law;” To become engaged in the practice of law, does not even have to be a lawyer to be engaged in the practice
there must be a continuity, or a succession of acts. As observed by of law as long as his activities involve the application of some law,
the Solicitor General in People vs. Villanueva:4 however peripherally. The stock broker and the insurance adjuster
and the realtor could come under the definition as they deal with
“Essentially, the word private practice of law implies that one or give advice on matters that are likely “to become involved in
must have presented himself to be in the active and continued litigation.”
practice of the legal profession and that his professional services
are available to the public for a compensation, as a source of his 235
livelihood or in consideration of his said services.”
VOL. 201, SEPTEMBER 3, 1991
ACCORDINGLY, my vote is to GRANT the petition and to declare
respondent Monsod as not qualified for the position of COMELEC 235
Chairman for not having engaged in the practice of law for at least
ten (10) years prior to his appointment to such position. Cayetano vs. Monsod

________________ The lawyer is considered engaged in the practice of law even if his
main occupation is another business and he interprets and applies
4 14 SCRA 109. some law only as an incident of such business. That covers every
company organized under the Corporation Code and regulated by
234 the SEC under P.D. 902-A. Considering the ramifications of the
modern society, there is hardly any activity that is not affected by
234 some law or government regulation the businessman must know
about and observe. In fact, again going by the definition, a lawyer
SUPREME COURT REPORTS ANNOTATED does not even have to be part of a business concern to be
considered a practitioner. He can be so deemed when, on his
Cayetano vs. Monsod 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
CRUZ,. J., dissenting: such transactions. If he operates a public utility vehicle as his main
source of livelihood, he would still be deemed engaged in the
I am sincerely impressed by the ponencia of my brother Paras but practice of law because he must obey the Public Service Act and
find I must dissent just the same. There are certain points on the rules and regulations of the Energy Regulatory Board.
which I must differ with him while of course respecting his
viewpoint. The ponencia quotes an American decision defining the practice
of law as the “performance of any acts, . , in or out of court,
To begin with, I do not think we are inhibited from examining the commonly understood to be the practice of law,” which tells us
qualifications of the respondent simply because his nomination absolutely nothing. The decision goes on to say that “because
has been confirmed by the Commission on Appointments. In my lawyers perform almost every function known in the commercial
view, this is not a political question that we are barred from and governmental realm, such a definition would obviously be too
resolving. Determination of the appointee’s credentials is made global to be workable.”
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 The effect of the definition given in the ponencia is to consider
subject to our review. 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
In Luego, which is cited in the ponencia, what was involved was enough that his activities are incidentally (even if only remotely)
the discretion of the appointing authority to choose between two connected with some law, ordinance, or regulation. The possible
claimants to the same office who both possessed the required exception is the lawyer whose income is derived from teaching
qualifications. It was that kind of discretion that we said could not ballroom dancing or escorting wrinkled ladies with pubescent
be reviewed. pretensions.

If a person elected by no less than the sovereign people may be The respondent’s credentials are impressive, to be sure, but they
ousted by this Court for lack of the required qualifications, I see do not persuade me that he has been engaged in the practice of
no reason why we cannot disqualify an appointee simply because law for ten years as required by the Constitution. It is conceded
he has passed the Commission on Appointments. that he has been engaged in business and finance, in which areas
he has distinguished himself, but as an executive and economist
Even the President of the Philippines may be declared ineligible by and not as a practicing lawyer. The plain fact is that he has
this Court in an appropriate proceeding notwithstanding that he occupied the various positions listed in his resume by virtue of his
has been found acceptable by no less than the enfranchised experience and prestige as a business-
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 236
be elected in the first place.
236
Coming now to the qualifications of the private respondent, I fear
that the ponencia may have been too sweeping in its definition of SUPREME COURT REPORTS ANNOTATED
the phrase “practice of law” as to render the qualification
practically toothless. From the numerous activities accepted as Cayetano vs. Monsod
 where membership in the bar is a requirement I fail to see how he
man and not as an attorney-at-law whose principal attention is can claim to have been engaged in the practice of law.
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 Engaging in the practice of law is a qualification not only for
reform, served in the NAMFREL and the Constitutional COMELEC chairman but also for appointment to the Supreme
Commission (together with non-lawyers like farmers and priests) Court and all lower courts. What kind of Judges or Justices will we
and was a member of the Davide Commission, he has not proved have if there main occupation is selling real estate, managing a
that his activities in these capacities extended over the prescribed business corporation, serving in fact-finding committee, working
10-year period of actual practice of the law. He is doubtless in media, or operating a farm with no active involvement in the
eminently qualified for many other positions worthy of his law, whether in Government or private practice, except that in
abundant talents but not as Chairman of the Commission on one joyful moment in the distant past, they happened to pass the
Elections. bar examinations?

I have much admiration for respondent Monsod, no less than for The Constitution uses the phrase “engaged in the practice of law
Mr. Justice Paras, but I must regretfully vote to grant the petition; for at least ten years.” The deliberate choice of words shows that
the practice envisioned is active and regular, not isolated,
DISSENTING OPINION occasional, accidental, intermittent, incidental, seasonal, or
GUTIERREZ, JR., J.: extemporaneous. To be “engaged” in an activity for ten years
requires committed participation in something which is the result
When this petition was filed, there was hope that engaging in the of one’s decisive choice. It means that one is occupied and
practice of law as a qualification for public office would be settled involved in the enterprise: one is obliged or pledged to carry it out
one way or another in fairly definitive terms. Unfortunately, this with intent and attention during the ten-year period.
was not the result.
I agree with the petitioner that based on the bio-data submitted
Of the fourteen (14) member Court, 5 are of the view that Mr. by respondent Monsod to the Commission on Appointments, the
Christian Monsod engaged in the practice of law (with one of latter has not been engaged in the practice of law for at least ten
these 5 leaving his vote behind while on official leave but not years. In fact, if appears that Mr. Monsod has never practiced law
expressing his clear stand on the matter); 4 categorically stating except for an alleged one year period after passing the bar
that he did not practice law; 2 voting in the result because there examinations when he worked in his father’s law firm. Even then
was no error so gross as to amount to grave abuse of discretion; his law practice must have been extremely limited because he was
one of official leave with no instructions left behind on how he also working for M.A. and Ph. D. degrees in
viewed the issue; and 2 not taking part in the deliberations and
the decision. 238

There are two key factors that make our task difficult. First is our 238
reviewing the work of a constitutional Commission on
Appointments whose duty is precisely to look into the SUPREME COURT REPORTS ANNOTATED
qualifications of persons appointed to high office. Even if the
Commission errs, we have no power to set aside error. We can Cayetano vs. Monsod
look only into grave abuse of discretion or whimsically and
arbitrariness. Second is our belief that Mr. Monsod possesses Economics at the University of Pennsylvania during that period.
superior qualifications in terms of executive ability, proficiency in How could he practice law in the United States while not a
manage- member of the Bar there?

237 The professional life of the respondent follows:

VOL. 201, SEPTEMBER 3, 1991 “1.15.1 Respondent Monsod’s activities since his passing the Bar
examinations in 1961 consist of the following:
237
1.1961–1963: M.A. in Economics (Ph. D. candidate), University of
Cayetano vs. Monsod Pennsylvania
2.1963–1970: World Bank Group—Economist, Industry
ment, educational background, experience in international Department; Operations, Latin American Department; Division
banking and finance, and instant recognition by the public. His Chief, South Asia and Middle East, International Finance
integrity and competence are not questioned by the petitioner. Corporation
What is before us is compliance with a specific requirement 3.1970–1973: Meralco Group—Executive of various companies,
written into the Constitution. i.e., Meralco Securities Corporation, Philippine Petroleum
Corporation, Philippine Electric Corporation
Inspite of my high regard for Mr. Monsod, I cannot shirk my 4.1973–1976: Yujuico Group—President, Fil-Capital Development
constitutional duty. He has never engaged in the practice of law Corporation and affiliated companies
for even one year. He is a member of the bar but to say that he 5.1976–1978: Finaciera Manila—Chief Executive Officer
has practiced law is stretching the term beyond rational limits. 6.1978–1986: Guevent Group of Companies—Chief Executive
Officer
A person may have passed the bar examinations. But if he has not 7.1986–1987: Philippine Constitutional Commission—Member
dedicated his life to the law, if he has not engaged in an activity 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 and it includes the giving of advice or the rendering of any
the following companies: services requiring the use of legal skill or knowledge, such as
a.ACE Container Philippines, Inc. preparing a will, contract or other instrument, the legal effect of
b.Dataprep, Philippines which, under the facts and conditions involved, must be carefully
c.Philippine SUN systems Products, Inc. determined. People ex rel. Chicago Bar Ass’n v. Tinkoff, 399 III.
d.Semirara Coal Corporation 282, 77 N.E.2d 693; People ex rel. Illinois State Bar Ass’n v.
e.CBL Timber Corporation People’s Stock Yards State Bank, 344 III. 462, 176 N.E. 901, and
Member of the Board of the Following: cases cited.

a.Engineering Construction Corporation of the Philippines 240

b.First Philippine Energy Corporation
c.First Philippine Holdings Corporation 240
d.First Philippine Industrial Corporation
e.Graphic Atelier SUPREME COURT REPORTS ANNOTATED
f.Manila Electric Company
g.Philippine Commercial Capital, Inc. Cayetano vs. Monsod
h.Philippine Electric Corporation
i.Tarlac Reforestation and Environment Enterprises It would be difficult, if not impossible to lay down a formula or
j.Tolong Aquaculture Corporation definition of what constitutes the practice of law. ‘Practicing law’
k.Visayan Aquaculture Corporation has been defined as ‘Practicing as an attorney or counselor at law
239 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
VOL. 201, SEPTEMBER 3, 1991 corporation when the giving of such advice or rendition of such
service requires the use of any degree of legal knowledge or skill.’
239 Without adopting that definition, we referred to it as being
substantially correct in People ex rel. Illinois State Bar Ass’n v.
Cayetano vs. Monsod People’s Stock Yards State Bank, 344 III. 462, 176 N.E. 901."
(People v. Schafer, 87 N.E. 2d 773, 776)
1.Guimaras Aquaculture Corporation”
(Rollo, pp. 21–22) 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,
There is nothing in the above bio-data which even remotely they should also be performed, habitually, frequently or
indicates that respondent Monsod has given the law enough customarily, to wit:
attention or a certain degree of commitment and participation as
would support in all sincerity and candor the claim of having xxx      xxx      xxx
engaged in its practice for at least ten years. Instead of working as
a lawyer, he has lawyers working for him. Instead of giving legal “Respondent’s answers to questions propounded to him were
advice of legal services, he was the one receiving that advice and rather evasive. He was asked whether or not he ever prepared
those services as an executive but not as a lawyer. contracts for the parties in real-estate transactions where he was
not the procuring agent. He answered: ‘Very seldom.’ In answer
The deliberations before the Commission on Appointments show to the question as to how many times he had prepared contracts
an effort to equate “engaged in the practice of law’? with the use for the parties during the twenty-nine years of his business, he
of legal knowledge in various fields of endeavor such as said: ‘I have no idea.’ When asked if it would be more than half a
commerce, industry, civic work, blue ribbon investigations, dozen times his answer was I suppose.’ Asked if he did not recall
agrarian reform, etc. where such knowledge would be helpful. making the statement to several parties that he had prepared
contracts in a large number of instances, he answered: ‘I don’t
I regret that I cannot join in playing fast and loose with a term, recall exactly what was said.’ When asked if he did not remember
which even an ordinary layman accepts as having a familiar and saying that he had made a practice of preparing deeds, mortgages
customary well-defined meaning. Every resident of this country and contracts and charging a fee to the parties therefor in
who has reached the age of discernment has to know, follow, or instances where he was not the broker in the deal, he answered:
apply the law at various times in his life. Legal knowledge is useful ‘Well, I don’t believe so, that is not a practice/ Pressed further for
if not necessary for the business executive, legislator, mayor, an answer as to his practice in preparing contracts and deeds for
barangay captain, teacher, policeman, farmer, fisherman, market parties where he was not the broker, he finally answered: ‘I have
vendor, and student to name only a few. And yet, can these done about everything that is on the books as far as real estate is
people honestly assert that as such, they are engaged in the concerned.’
practice of law?
xxx      xxx      xxx
The Constitution requires having been “engaged in the practice of
law for at least ten years.” It is not satisfied with having been “a Respondent takes the position that because he is a real-estate
member of the Philippine bar for at least ten years.” broker he has a lawful right to do any legal work in connection
with real-estate transactions, especially in drawing of real-estate
Some American courts have defined the practice of law, as contracts, deeds, mortgages, notes and the like. There is no doubt
follows: but that he has engaged in these practices over the years and has
charged for his services in that connection. x x x.” (People v.
“The practice of law involves not only appearance in court in Schafer, 87 N.E. 2d 773)
connection with litigation but also services rendered out of court,
xxx      xxx      xxx 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
241 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
VOL. 201, SEPTEMBER 3, 1991 as a lawyer before a notary public, and files a manifestation with
the Supreme Court informing it of his intention to practice law in
241 all courts in the country (People v. De Luna, 102 Phil., 968).

Cayetano vs. Monsod Practice is more than an isolated appearance, for it consists in
frequent or customary action, a succession of acts of the same
“x x x. An attorney, in the most general sense, is a person kind. In other words, it is a habitual exercise (People v. Villanueva,
designated or employed by another to act in his stead; an agent; 14 SCRA 109 citing State v. Cotner, 127, p. 1, 87 Kan, 864)." (Rollo,
more especially, one of a class of persons authorized to appear p. 115)
and act for suitors or defendants in legal proceedings. Strictly,
these professional persons are attorneys at law, and non- xxx      xxx      xxx
professional agents are properly styled ‘attorneys in fact;’ but the
single word is much used as meaning an attorney at law. A person While the career as a businessman of respondent Monsod may
may be an attorney in facto for another, without being an have profited from his legal knowledge, the use of such legal
attorney at law.’ Abb. Law Dict. ‘Attorney/ ‘A public attorney, or knowledge is incidental and consists of isolated activities which do
attorney at law, says Webster, ‘is an officer of a court of law, not fall under the denomination of practice of law. Admission to
legally qualified to prosecute and defend actions in such court on the practice of law was not required for membership in the
the retainer of clients. The principal duties of an attorney are (1) Constitutional Commission or in the Fact-Finding Commission on
to be true to the court and to his client; (2) to manage the the 1989 Coup Attempt. Any specific legal activities which may
business of his client with care, skill, and integrity; (3) to keep his have been assigned to Mr. Monsod while a member may be
client informed as to the state of his business; (4) to keep his likened to isolated transactions of foreign corporations in the
secrets confided to him as such. x x x His rights are to be justly Philippines which do not categorize the foreign corporations as
compensated for his services.’ Bouv. Law Dict. tit. ‘Attorney.’ The doing business in the Philippines. As in the practice of law, doing
transitive verb ‘practice,’ as defined by Webster, means ‘to door business also should be active and continuous. Isolated business
perform frequently, customarily, or habitually; to perform by a transactions or occasional, incidental and casual transactions are
succession of acts, as, to practice gaming; x x x to carry on in not within the context of doing business. This was our ruling in the
practice, or repeated action; to apply, as a theory, to real life; to case of Antam Consolidated, Inc. v. Court of Appeals, 143 SCRA
exercise, as a profession, trade, art. etc.; as, to practice law or 288 [1986]).
medicine,’ etc. x x x.” (State v. Bryan, S.E. 522, 523; Emphasis
supplied) Respondent Monsod, corporate executive, civic leader, and
member of the Constitutional Commission may possess the
In this jurisdiction, we have ruled that the practice of law denotes background, competence, integrity, and dedication, to qualify for
frequency or a succession of acts. Thus, we stated in the case of such high offices as President, Vice-President, Senator,
People v. Villanueva (14 SCRA 109 [1965]): Congressman or Governor but the Constitution in prescribing the
specific qualification of having engaged in the practice of law for
“x x x Practice is more than an isolated appearance, for it consists at least ten (10) years for the position of COMELEC Chairman has
in frequent or customary actions, a succession of acts of the same ordered that he may not be confirmed for that office. The
kind. In other words, it is frequent habitual exercise (State v. Constitution charges the public respondents no less than this
Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law Court to obey its mandate,
to fall within the prohibition of statute has been interpreted as
customarily or habitually holding one’s self out to the public, as a I, therefore, believe that the Commission on Appointments
lawyer and demanding payment for such services. x x ." (at p. 1 committed grave abuse of discretion in confirming the nomina-
12)
243
It is to be noted that the Commission on Appointment itself
recognizes habituality as a a required component of the meaning VOL. 201, SEPTEMBER 3, 1991
of practice of law in a Memorandum prepared and issued by it, to
wit: 243

“1. Habituality. The term ‘practice of law’ implies customarily or Cayetano vs. Monsod
habitually holding one’s self out to the public as a lawyer (People
v. tion of respondent Monsod as Chairman of the COMELEC.

242 I vote to GRANT the petition.

242 Petition dismissed.

SUPREME COURT REPORTS ANNOTATED Note.—View that the court should not impose its view on areas
within the competence of policy makers. (Garcia vs. Board of
Cayetano vs. Monsod lnvestments, 191 SCRA 288.) Cayetano vs. Monsod, 201 SCRA 210,
G.R. No. 100113 September 3, 1991