Cayetano vs. Monsod- G.R. No. 100113 September 3, 1991

5/24/2018 Cayetano vs. Monsod- G.R. No. 100113 September 3, 1991

1/21

G.R. No. 100113 September 3, 1991

RENATO CAYETANO, petitioner,vs.CHRISTIAN MONSO, HON. !O"ITO R. SA#ONGA, COMMISSION ON

A$$OINTMENT, %n& HON. G'I##ERMO CARAG'E, in (is )%p%)it* %sSe)ret%r* o+ -&et %n& M%n%ement, respon&ents.

Renato L. Cayetano for and in his own behalf.

Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.

PARAS, !./p

We are faced here with a controversy of far-reaching proportions. While

ostensibly only legal issues are involved, the ourt!s decision in this case would

indubitably have a profound effect on the political aspect of our national

e"istence.

#he $%&' onstitution provides in Section $ ($), Article *+-

#here shall be a oission on Elections coposed of a hairan and si"

oissioners who shall be natural-born citiens of the /hilippines and, at the

tie of their appointent, at least thirty-five years of age, holders of a college

degree, and ust not have been candidates for any elective position in the

iediately preceding -elections. 0owever, a a1ority thereof, including the

hairan, shall be ebers of the /hilippine 2ar who have been engaged in the

practice of law for at least ten years. (Ephasis supplied)

#he afore3uoted provision is patterned after Section l(l), Article +**- of the $%'4

onstitution which siilarly provides

#here shall be an independent oission on Elections coposed of ahairan and eight oissioners who shall be natural-born citiens of the

/hilippines and, at the tie of their appointent, at least thirty-five years of age

and holders of a college degree. 0owever, a a1ority thereof, including the

hairan, shall be ebers of the /hilippine 2ar who have been engaged in

the practice of law for at least ten years. ! (Ephasis supplied)


2/21

5egrettably, however, there sees to be no 1urisprudence as to what constitutes

practice of law as a legal 3ualification 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. t is not li!ited to appearing in court, or advising and assisting in

the conduct of litigation, ut e!races the preparation of pleadings, and

other papers incident to actions and special proceedings, conve#ancing,

the preparation of legal instru!ents of all kinds, and the giving of all legal

advice to clients. t e!races all advice to clients and all actions taken for

the! in !atters connected with the law. An attorne# engages in the

practice of law # !aintaining an office where he is held out to e$an

attorne#, using a letterhead descriing hi!self as an attorne#, counseling

clients in legal !atters, negotiating with opposing counsel aout pending

litigation, and fi%ing and collecting fees for services rendered # his

associate. &%)2s #% i)tion%r*, 'rd ed.(

#he practice of law is not liited to the conduct of cases in court. (Land Title

Abstract and Trust Co. v. Dworken,$6% 7hio St. 64, $%4 8.E. 9:;) A person isalso considered to be in the practice of law when he

... for valuable consideration engages in the business of advising person, firs,

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, coissioner, referee, board, body, coittee, or coission

constituted by law or authoried to settle controversies and there, in such

representative capacity perfors any act or acts for the purpose of obtaining or

defending the rights of their clients under the law. )therwise stated, one who,

in a representative capacit#, engages in the usiness of advising clients as

to their rights under the law, or while so engaged perfor!s an# act or acts

either in court or outside of court for that purpose, is engaged in the

practice of law. &St%te e4. re. M)ittri) v..C.S. -&e* %n& Co., *+ S.-. d


3/21

/0, '1+ 2o. 0(

#his ourt in the case of Philippine Lawyers Association v.Agrava, ($;: /hil.

$'4,$'9-$'') stated

The practice of lawis not liited to the conduct of cases or litigation in court< it

ebraces the preparation of pleadings and other papers incident to actions and

special proceedings, the anageent of such actions and proceedings on behalf

of clients before 1udges and courts, and in addition, conveying. *n general, all

advice to clients, and all action ta=en for the in attersconnected with the law

incorporation services, assessent and condenation services conteplating an

appearance before a 1udicial body, the foreclosure of a ortgage, enforceent of

a creditor!s clai in ban=ruptcy and insolvency proceedings, and conducting

proceedings in attachent, and in atters of estate and guardianship have been

held to constitute law practice, as do the preparation and drafting of legal

instruents, where the work done involves the deterination by the trained legal

ind of the legal effect of facts and conditions. (: A. Jr. p. 696, 694). (Ephasis

supplied)

Practice of law under ode conditions consists in no sall part of wor=perfored outside of any court and having no iediate relation to proceedings

in court. *t ebraces conveyancing, the giving of legal advice on a large variety

of sub1ects, and the preparation and e"ecution of legal instruents covering an

e"tensive field of business and trust relations and other affairs. Although these

transactions ay have no direct connection with court proceedings, they are

always sub!ect to becoe involved in litigation. #hey re3uire in any aspects a

high degree of legal s=ill, a wide e"perience with en and affairs, and great

capacity for adaptation to difficult and cople" situations. #hese custoary

functions of an attorney or counselor at law bear an intiate relation to the

adinistration of 1ustice by the courts. 8o valid distinction, so far as concerns the

3uestion set forth in the order, can be drawn between that part of the wor= of the

lawyer which involves appearance in court and that part which involves advice


4/21

and drafting of instruents in his office. *t is of iportance to the welfare of the

public that these anifold custoary functions be perfored by persons

possessed of ade3uate learning and s=ill, of sound oral character, and acting at

all ties under the heavy trust obligations to clients which rests upon all

attorneys. (Moran, Coents on the Rules of Court, >ol. 4 ?$%:4 ed.@ , p. 99:-

999, citing "n re #pinion of the $ustices?Mass.@, $% 8.E. 4$4, 3uoted in Rhode

"s. %ar Assoc. v. Autoobile &ervice Assoc. ?5.*.@ $'% A. $4%,$). (Ephasis

ours)

The 3niversit# of the Philippines 4aw 5enter in conducting orientation

riefing for new law#ers &*/61$*/60( listed the di!ensions of the practice of

law in even roader ter!s as advocac#, counselling and pulic service.

7ne ay be a practicing attorney in following any line of eployent in the

profession. *f what he does e"acts =nowledge of the law and is of a =ind usual for

attorneys engaging in the active practice of their profession, and he follows soe

one or ore lines of eployent such as this he is a practicing attorney at law

within the eaning of the statute. (%arr v. Cardell, $:: 8W 4$6)

Practice of law !eans an# activit#, in or out of court, which requires theapplication of law, legal procedure, knowledge, training and e%perience.

"To engage in the practice of law is to perfor! those acts which are

characteristics of the profession. 7enerall#, to practice law is to give notice

or render an# kind of service, which device or service requires the use in

an# degree of legal knowledge or skill." &*** A4R '(

#he following records of the $%&9 onstitutional oission show that it has

adopted a liberal interpretation of the ter Bpractice of law.B

M5. C7D. 2efore we suspend the session, ay * a=e a anifestation which *

forgot to do during our review of the provisions on the oission on Audit. May

* be allowed to a=e a very brief stateent

#0E /5ES*F*8G 7CC*E5 (Mr. Jair).

#he oissioner will please proceed.


5/21

M5. C7D. This has to do with the 'ualifications of the ebers of the

Coission on Audit. Aong others, the 'ualifications provided for by &ection "

is that (They ust be )ebers of the Philippine %ar( * " a 'uoting fro the

provision * (who have been engaged in the practice of law for at least ten

years(.

#o avoid any isunderstanding which would result in e"cluding ebers of the

2ar who are now eployed in the 7A or oission on Audit, we would like to

ake the clarification that this provision on 'ualifications regarding ebers of

the %ar does not necessarily refer or involve actual practice of law outside the

C#A +e have to interpret this to ean that as long as the lawyers who are

eployed in the C#A are using their legal knowledge or legal talent in their

respective work within C#A, then they are 'ualified to be considered for

appointent as ebers or coissioners, even chairan, of the Coission

on Audit.

#his has been discussed by the oittee on onstitutional oissions and

Agencies and we dee it iportant to ta=e it up on the floor so that this

interpretation ay be ade available whenever this provision on the

3ualifications as regards ebers of the /hilippine 2ar engaging in the practiceof law for at least ten years is ta=en up.

M5. 7/E. Will oissioner Co yield to 1ust one 3uestion.

M5. C7D. Hes, Mr. /residing 7fficer.

M5. 7/E. "s he, in effect, saying that service in the C#A by a lawyer is

e'uivalent to the re'uireent of a law practice that is set forth in the Article on

the Coission on Audit

M5. C7D. +e ust consider the fact that the work of C#A, although it is

auditing, will necessarily involve legal work- it will involve legal work. And,

therefore, lawyers who are eployed in C#A now would have the necessary

'ualifications in accordance with the Provision on 'ualifications under our

provisions on the Coission on Audit. And, therefore, the answer is yes.

M5. 7/E. Hes. So that the construction given to this is that this is e3uivalent to


6/21

the practice of law.

M5. C7D. es, )r. Presiding #fficer.

M5. 7/E.Thank you.

... ( Ephasis supplied)

Section $($), Article *+-F of the $%&' onstitution, provides, aong others, that

the hairan and two oissioners of the oission on Audit (7A) should

either be certified public accountants with not less than ten years of auditing

practice, or ebers of the /hilippine 2ar who have been engaged in the

practice of lawfor at least ten years. (ephasis supplied)

orollary to this is the ter Bprivate practitionerB and which is in any ways

synonyous with the word Blawyer.B #oday, although any lawyers do not

engage in private practice, it is still a fact that the a1ority of lawyers are private

practitioners. (Gary Munne=e, #pportunities in Law Careers ?>GM areer

0orions *llinois@, ?$%&9@, p. $:).

At this point, it ight be helpful to defineprivate practice. #he ter, as coonly

understood, eans Ban individual or organiation engaged in the business ofdelivering legal services.B ("bid.). awyers who practice alone are often called

Bsole practitioners.B Groups of lawyers are called Bfirs.B #he fir is usually a

partnership and ebers of the fir are the partners. Soe firs ay be

organied as professional corporations and the ebers called shareholders. *n

either case, the ebers of the fir are the e"perienced attorneys. *n ost

firs, there are younger or ore ine"perienced salaried attorneyscalled

Bassociates.B ("bid.).

#he test that defines law practice by loo=ing to traditional areas of law practice is

essentially tautologous, unhelpful defining the practice of law as that which

lawyers do. (harles W. Wolfra, )odern Legal /thics ?West /ublishing o.

Minnesota, $%&9@, p. :%4). #he practice of law is defined as the perforance of

any acts . . . in or out of court, coonly understood to be the practice of law.


7/21

(&tate %ar Ass0n v. Connecticut %ank 1 Trust Co., $: onn. 666, $; A.6d &94,

&'; ?$%:&@ ?3uoting 2rievance Co. v. Payne, $6& onn. 46:, 66 A.6d 964,

969 ?$%$@). 2ecause lawyers perfor alost every function =nown in the

coercial and governental real, such a definition would obviously be too

global to be wor=able.(Wolfra, op. cit.).

#he appearance of a lawyer in litigation in behalf of a client is at once the ost

publicly failiar role for lawyers as well as an uncoon role for the average

lawyer. Most lawyers spend little tie in courtroos, and a large percentage

spend their entire practice without litigating a case. ( "bid., p. :%4). 8onetheless,

any lawyers do continue to litigate and the litigating lawyer!s role colors uch of

both the public iage and the self perception of the legal profession. ( "bid.).

*n this regard thus, the doinance of litigation in the public ind reflects history,

not reality. ("bid.). Why is this so 5ecall that the late Ale"ander Syip, a

corporate lawyer, once articulated on the iportance of a lawyer as a business

counselor in this wise BEven today, there are still uninfored layen whose

concept of an attorney is one who principally tries cases before the courts. #he

ebers of the bench and bar and the infored layen such as businessen,

=now that in ost developed societies today, substantially ore legal wor= is

transacted in law offices than in the courtroos. General practitioners of law whodo both litigation and non-litigation wor= also =now that in ost cases they find

theselves spending ore tie doing what ?is@ loosely desccribe?d@ as business

counseling than in trying cases. #he business lawyer has been described as the

planner, the diagnostician and the trial lawyer, the surgeon. *?t@ need not ?be@

stress?ed@ that in law, as in edicine, surgery should be avoided where internal

edicine can be effective.B (%usiness &tar, Borporate Cinance aw,B Jan. $$,

$%&%, p. ).

*n the course of a wor=ing day the average general practitioner wig engage in a

nuber of legal tas=s, each involving different legal doctrines, legal s=ills, legal

processes, legal institutions, clients, and other interested parties. Even the

increasing nubers of lawyers in specialied practice wig usually perfor at least

soe legal services outside their specialty. And even within a narrow specialty


8/21

such as ta" practice, a lawyer will shift fro one legal tas= or role such as advice-

giving to an iportantly different one such as representing a client before an

adinistrative agency. (Wolfra, supra, p. 9&').

2y no eans will ost of this wor= involve litigation, unless the lawyer is one of

the relatively rare types I a litigator who specialies in this wor= to the e"clusion

of uch else. *nstead, the wor= will re3uire the lawyer to have astered the full

range of traditional lawyer s=ills of client counselling, advice-giving, docuent

drafting, and negotiation. And increasingly lawyers find that the new s=ills of

evaluation and ediation are both effective for any clients and a source of

eployent. ("bid.).

Most lawyers will engage in non-litigation legal wor= or in litigation wor= that is

constrained in very iportant ways, at least theoretically, so as to reove fro it

soe of the salient features of adversarial litigation. 7f these special roles, the

ost proinent is that of prosecutor. *n soe lawyers! wor= the constraints are

iposed both by the nature of the client and by the way in which the lawyer is

organied into a social unit to perfor that wor=. #he ost coon of these

roles are those of corporate practice and governent legal service. ("bid.).

*n several issues of the %usiness &tar, a business daily, herein below 3uoted are

eerging trends in corporate law practice, a departure fro the traditionalconcept of practice of law.

We are e"periencing today what truly ay be called a revolutionary

transforation in corporate law practice. awyers and other professional groups,

in particular those ebers participating in various legal-policy decisional

conte"ts, are finding that understanding the a1or eerging trends in corporation

law is indispensable to intelligent decision-a=ing.

onstructive ad1ustent to a1or corporate probles of today re3uires an

accurate understanding of the nature and iplications of the corporate law

research function accopanied by an accelerating rate of inforation

accuulation. #he recognition of the need for such iproved corporate legal

policy forulation, particularly Bodel-a=ingB and Bcontingency planning,B has

ipressed upon us the inade3uacy of traditional procedures in any decisional


9/21

conte"ts.

*n a cople" legal proble the ass of inforation to be processed, the sorting

and weighing of significant conditional factors, the appraisal of a1or trends, the

necessity of estiating the conse3uences of given courses of action, and the

need for fast decision and response in situations of acute danger have propted

the use of sophisticated concepts of inforation flow theory, operational analysis,

autoatic data processing, and electronic coputing e3uipent.

nderstandably, an iproved decisional structure ust stress the predictive

coponent of the policy-a=ing process, wherein a BodelB, of the decisional

conte"t or a segent thereof is developed to test pro1ected alternative courses of

action in ters of futuristic effects flowing therefro.

Although ebers of the legal profession are regularly engaged in predicting

and pro1ecting the trends of the law, the sub1ect of corporate finance law has

received relatively little organied and foralied attention in the philosophy of

advancing corporate legal education. 8onetheless, a cross-disciplinary approach

to legal research has becoe a vital necessity.

ertainly, the general orientation for productive contributions by those trained

priarily in the law can be iproved through an early introduction to ulti-

variable decisional conte"t and the various approaches for handling suchprobles. awyers, particularly with either a aster!s or doctorate degree in

business adinistration or anageent, functioning at the legal policy level of

decision-a=ing now have soe appreciation for the concepts and analytical

techni3ues of other professions which are currently engaged in siilar types of

cople" decision-a=ing.

#ruth to tell, any situations involving corporate finance probles would re3uire

the services of an astute attorney because of the cople" legal iplications that

arise fro each and every necessary step in securing and aintaining the

business issue raised. (%usiness &tar, Borporate Cinance aw,B Jan. $$, $%&%,

p. ).

*n our litigation-prone country, a corporate lawyer is assiduously referred to as

the Babogado de capanilla.B 0e is the Bbig-tieB lawyer, earning big oney and


10/21

with a clientele coposed of the tycoons and agnates of business and industry.

Fespite the growing nuber of corporate lawyers, any people could not e"plain

what it is that a corporate lawyer does. Cor one, the nuber of attorneys

eployed by a single corporation will vary with the sie and type of the

corporation. Many saller and soe large corporations far out all their legal

probles to private law firs. Many others have in-house counsel only for certain

atters. 7ther corporation have a staff large enough to handle ost legal

probles in-house.

A corporate lawyer, for all intents and purposes, is a lawyer who handles the legal

affairs of a corporation. 0is areas of concern or 1urisdiction ay include, inter

alia corporate legal research, ta" laws research, acting out as corporate

secretary (in board eetings), appearances in both courts and other ad1udicatory

agencies (including the Securities and E"change oission), and in other

capacities which re3uire an ability to deal with the law.

At any rate, a corporate lawyer ay assue responsibilities other than the legal

affairs of the business of the corporation he is representing. These include such

atters as deterining policy and becoing involved in anageent.

( Ephasis supplied.)

*n a big copany, for e"aple, one ay have a feeling of being isolated fro theaction, or not understanding how one!s wor= actually fits into the wor= of the

orgarniation. #his can be frustrating to soeone who needs to see the results of

his wor= first hand. *n short, a corporate lawyer is soeties offered this fortune

to be ore closely involved in the running of the business.

Moreover, a corporate lawyer!s services ay soeties be engaged by a

ultinational corporation (M8). Soe large M8s 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 sall nuber of copanies

and law firs. 2ecause wor=ing in a foreign country is perceived by any as

glaorous, tills is an area coveted by corporate lawyers. *n ost cases, however,

the overseas 1obs go to e"perienced attorneys while the younger attorneys do

their Binternational practiceB in law libraries. (%usiness &tar, Borporate aw


11/21

/ractice,B May 6:,$%%;, p. ).

#his brings us to the inevitable, i.e., the role of the lawyer in the real of finance.

#o borrow the lines of 0arvard-educated lawyer 2ruce Wassertein, to wit BA bad

lawyer is one who fails to spot probles, a good lawyer is one who perceives the

difficulties, and the e"cellent lawyer is one who surounts the.B (%usiness &tar,

Borporate Cinance aw,B Jan. $$, $%&%, p. ).

#oday, the study of corporate law practice direly needs a Bshot in the ar,B so to

spea=. 8o longer are we tal=ing of the traditional law teaching ethod of

confining the sub1ect study to the orporation ode and the Securities ode but

an incursion as well into the intertwining odern anageent issues.

Such corporate legal anageent issues deal priarily with three (4) types of

learning ($) ac3uisition of insights into current advances which are of particular

significance to the corporate counsel< (6) an introduction to usable disciplinary

s=ins applicable to a corporate counsel!s anageent responsibilities< and (4) a

devotion to the organiation and anageent of the legal function itself.

#hese three sub1ect areas ay be thought of as intersecting circles, with a

shared area lin=ing the. 7therwise =nown as Bintersecting anagerial

1urisprudence,B it fors a unifying thee for the corporate counsel!s total

learning.Soe current advances in behavior and policy sciences affect the counsel!s role.

Cor that atter, the corporate lawyer reviews the globaliation process, including

the resulting strategic repositioning that the firs he provides counsel for are

re3uired to a=e, and the need to thin= about a corporation!s< strategy at ultiple

levels. #he salience of the nation-state is being reduced as firs deal both with

global ultinational entities and siultaneously with sub-national governental

units. Cirs increasingly collaborate not only with public entities but with each

other I often with those who are copetitors in other arenas.

Also, the nature of the lawyer0s participation in decision3aking within the

corporation is rapidly changing. The ode corporate lawyer has gained a new

role as a stakeholder * in soe cases participating in the organi4ation and

operations of governance through participation on boards and other decision3


12/21

aking roles. 7ften these new patterns develop alongside e"isting legal

institutions and laws are perceived as barriers. #hese trends are coplicated as

corporations organie for global operations. ( Ephasis supplied)

The practising lawyer of today is failiar as well with governental policies

toward the prootion and anageent of technology. 5ew collaborative

arrangeents for prooting specific technologies or copetitiveness ore

generally re'uire approaches fro industry that differ fro older, ore

adversarial relationships and traditional fors of seeking to influence

governental policies. And there are lessons to be learned fro other countries.

*n Europe, /sprit, /ureka and Race are e"aples of collaborative efforts

between governental and business Japan!s )"T" is world faous. (Ephasis

supplied)

Collowing the concept of boundary spanning, the office of the orporate ounsel

coprises a distinct group within the anagerial structure of all =inds of

organiations. Effectiveness of both long-ter and teporary groups within

organiations has been found to be related to indentifiable factors in the group-

conte"t interaction such as the groups actively revising their =nowledge of the

environent coordinating wor= with outsiders, prooting tea achieveents

within the organiation. *n general, such e"ternal activities are better predictors oftea perforance than internal group processes.

"n a crisis situation, the legal anagerial capabilities of the corporate lawyer vis3

a3vis the anagerial ettle of corporations are challenged. urrent research is

see=ing ways both to anticipate effective anagerial procedures and to

understand relationships of financial liability and insurance considerations.

(Ephasis supplied)

5egarding the s=ills to apply by the corporate counsel, three factors are apropos

6irst &yste Dynaics. #he field of systes dynaics has been found an

effective tool for new anagerial thin=ing regarding both planning and pressing

iediate probles. An understanding of the role of feedbac= loops, inventory

levels, and rates of flow, enable users to siulate all sorts of systeatic probles

I physical, econoic, anagerial, social, and psychological. 5ew prograing


13/21

techni'ues now ake the syste dynaics principles ore accessible to

anagers * including corporate counsels. (Ephasis supplied)

&econd Decision Analysis. This enables users to ake better decisions involving

cople7ity and uncertainty. "n the conte7t of a law departent, it can be used to

appraise the settleent value of litigation, aid in negotiation settleent, and

inii4e the cost and risk involved in anaging a portfolio of cases . (Ephasis

supplied)

Third )odeling for 5egotiation )anageent. oputer-based odels can be

used directly by parties and ediators in all lands of negotiations. All integrated

set of such tools provide coherent and effective negotiation support, including

hands-on on instruction in these techni3ues. A siulation case of an international

1oint venture ay be used to illustrate the point.

?2e this as it ay,@ the organiation and anageent of the legal function,

concern three pointed areas of consideration, thus

Preventive Lawyering. /lanning by lawyers re3uires special s=ills that coprise a

a1or part of the general counsel!s responsibilities. #hey differ fro those of

reedial law. /reventive lawyering is concerned with iniiing the ris=s of legal

trouble and a"iiing legal rights for such legal entities at that tie when

transactional or siilar facts are being considered and ade.)anagerial $urisprudence. #his is the fraewor= within which are underta=en

those activities of the fir to which legal conse3uences attach. *t needs to be

directly supportive of this nation!s evolving econoic and organiational fabric as

firs change to stay copetitive in a global, interdependent environent. #he

practice and theory of BlawB is not ade3uate today to facilitate the relationships

needed in trying to a=e a global econoy wor=.

#rgani4ation and 6unctioning of the Corporate Counsel0s #ffice . #he general

counsel has eerged in the last decade as one of the ost vibrant subsets of the

legal profession. #he corporate counsel hear responsibility for =ey aspects of the

fir!s strategic issues, including structuring its global operations, anaging

iproved relationships with an increasingly diversified body of eployees,

anaging e"panded liability e"posure, creating new and varied interactions with


14/21

public decision-a=ers, coping internally with ore cople" a=e or by

decisions.

#his whole e"ercise drives hoe the thesis that =nowing corporate law is not

enough to a=e one a good general corporate counsel nor to give hi a full

sense of how the legal syste shapes corporate activities. And even if the

corporate lawyer!s ai is not the understand all of the law!s effects on corporate

activities, he ust, at the very least, also gain a wor=ing =nowledge of the

anageent issues if only to be able to grasp not only the basic legal

Bconstitution! or a=eup of the ode corporation. B%usiness &tarB, B#he

orporate ounsel,B April $;, $%%$, p. ).

#he challenge for lawyers (both of the bar and the bench) is to have ore than a

passing =nowledge of financial law affecting each aspect of their wor=. Het, any

would adit to ignorance of vast tracts of the financial law territory. What

transpires ne"t is a dilea of professional security Will the lawyer adit

ignorance and ris= opprobriu< or will he feign understanding and ris=

e"posure (%usiness &tar, Borporate Cinance law,B Jan. $$, $%&%, p. ).

5espondent hristian Monsod was noinated by /resident oraon . A3uino

to the position of hairan of the 7MEE in a letter received by theSecretariat of the oission on Appointents on April 6:, $%%$. /etitioner

opposed the noination because allegedly Monsod does not possess the

re3uired 3ualification of having been engaged in the practice of law for at least

ten years.

7n June :, $%%$, the oission on Appointents confired the noination of

Monsod as hairan of the 7MEE. 7n June $&, $%%$, he too= his oath of

office. 7n the sae day, he assued office as hairan of the 7MEE.

hallenging the validity of the confiration by the oission on Appointents

of Monsod!s noination, petitioner as a citien and ta"payer, filed the instant

petition for certiorari and /rohibition praying that said confiration and the

conse3uent appointent of Monsod as hairan of the oission on

Elections be declared null and void.


15/21

Atty. hristian Monsod is a eber of the /hilippine 2ar, having passed the bar

e"ainations of $%9; with a grade of &9-::K. 0e has been a dues paying

eber of the *ntegrated 2ar of the /hilippines since its inception in $%'6-'4. 0e

has also been paying his professional license fees as lawyer for ore than ten

years. (p. $6, 5ollo)

After graduating fro the ollege of aw (./.) and having hurdled the bar, Atty.

)onsod worked in the law office of his father. Furing his stint in the World 2an=

Group ($%94-$%';), )onsod worked as an operations officer for about two years

in Costa Rica and Panaa, which involved getting ac'uainted with the laws of

eber3countries negotiating loans and coordinating legal, econoic, and

pro!ect work of the %ank. 8pon returning to the Philippines in 9:;


16/21

be a eber.

*n a loan agreeent, for instance, a negotiating panel acts as a tea, and which

is ade3uately constituted to eet the various contingencies that arise during a

negotiation. 2esides top officials of the 2orrower concerned, there are the legal

officer (such as the legal counsel), the finance anager, and an operations

officer(such as an official involved in negotiating the contracts) who coprise the

ebers of the tea. (Guillero >. Soliven, Boan 8egotiating Strategies for

Feveloping ountry 2orrowers,B Staff /aper 8o. 6, entral 2an= of the

/hilippines, Manila, $%&6, p. $$). (Ephasis supplied)

After a fashion, the loan agreeent is li=e a country!s onstitution< it lays down

the law as far as the loan transaction is concerned. #hus, the eat of any oan

Agreeent can be copartentalied into five (:) fundaental parts ($)

business ters< (6) borrower!s representation< (4) conditions of closing< ()

covenants< and (:) events of default. ("bid., p. $4).

*n the sae vein, lawyers play an iportant role in any debt restructuring

progra. Cor aside fro perforing the tas=s of legislative drafting and legal

advising, they score national developent policies as =ey factors in aintaining

their countries! sovereignty. (ondensed fro the wor= paper, entitled BWanted

Fevelopent awyers for Feveloping 8ations,B subitted by . Michael 0ager,regional legal adviser of the nited States Agency for *nternational Fevelopent,

during the Session on aw for the Fevelopent of 8ations at the Abid1an World

onference in *vory oast, sponsored by the World /eace #hrough aw enter

on August 69-4$, $%'4). ( Ephasis supplied)

Loan concessions and coproises, perhaps even ore so than purely

renegotiation policies, deand e7pertise in the law of contracts, in legislation and

agreeent drafting and in renegotiation. 8ecessarily, a sovereign lawyer ay

wor= with an international business specialist or an econoist in the forulation

of a odel loan agreeent. Febt restructuring contract agreeents contain such

a i"ture of technical language that they should be carefully drafted and signed

only with the advise of copetent counsel in con1unction with the guidance of

ade3uate technical support personnel. (&ee "nternational Law Aspects of the


17/21

Philippine /7ternal Debts, an unpublished dissertation, .S.#. Graduate School

of aw, $%&', p. 46$). ( Ephasis supplied)

A critical aspect of sovereign debt restructuringLcontract construction is the set of

ters and conditions which deterines the contractual reedies for a failure to

perfor one or ore eleents of the contract. A good agreeent ust not only

define the responsibilities of both parties, but ust also state the recourse open

to either party when the other fails to discharge an obligation. Cor a copleat

debt restructuring represents a devotion to that principle which in the ultiate

analysis is sine 'ua nonfor foreign loan agreeents-an adherence to the rule of

law in doestic and international affairs of whose =ind .S. Supree ourt

Justice 7liver Wendell 0oles, Jr. once said B#hey carry no banners, they beat

no drus< but where they are, en learn that bustle and bush are not the e3ual

of 3uiet genius and serene astery.B (See 5icardo J. 5oulo, B#he 5ole of

awyers in Coreign *nvestents,B *ntegrated 2ar of the /hilippine Journal, >ol.

$:, 8os. 4 and , #hird and Courth uarters, $%'', p. 69:).

"nterpreted in the light of the various definitions of the ter Practice of law(.

particularly the odern concept of law practice, and taking into consideration theliberal construction intended by the fraers of the Constitution, Atty. )onsod0s

past work e7periences as a lawyer3econoist, a lawyer3anager, a lawyer3

entrepreneur of industry, a lawyer3negotiator of contracts, and a lawyer3legislator

of both the rich and the poor * verily ore than satisfy the constitutional

re'uireent * that he has been engaged in the practice of law for at least ten

years.

2esides in the leading case of Luego v. Civil &ervice Coission, $4 S5A

46', the ourt said

Appointent is an essentially discretionary powerand ust be perfored by the

officer in which it is vested according to his best lights, the only condition being

that the appointee should possess the 3ualifications re3uired by law. *f he does,


18/21

then the appointent cannot be faulted on the ground that there are others better

3ualified who should have been preferred. This is a political 'uestion involving

considerations of wisdo which only the appointing authority can decide.

(ephasis supplied)

8o less ephatic was the ourt in the case of (Central %ank v. Civil &ervice

Coission, $'$ S5A ') where it stated

*t is well-settled that when the appointee is 3ualified, as in this case, and all the

other legal re3uireents are satisfied, the oission has no alternative but to

attest to the appointent in accordance with the ivil Service aw. #he

oission has no authority to revo=e an appointent on the ground that

another person is ore 3ualified for a particular position. *t also has no authority

to direct the appointent of a substitute of its choice. #o do so would be an

encroachent on the discretion vested upon the appointing authority. An

appointent is essentially within the discretionary power of whosoever it is

vested, sub!ect to the only condition that the appointee should possess the

'ualifications re'uired by law. ( Ephasis supplied)

#he appointing process in a regular appointent as in the case at bar, consists offour () stages ($) noination< (6) confiration by the oission on

Appointents< (4) issuance of a coission (in the /hilippines, upon subission

by the oission on Appointents of its certificate of confiration, the

/resident issues the peranent appointent< and () acceptance e.g., oath-

ta=ing, posting of bond, etc. . . . (Lacson v. Roero, 8o. -4;&$, 7ctober $,

$%%< Gonales, aw on /ublic 7fficers, p. 6;;)

#he power of the oission on Appointents to give its consent to the

noination of Monsod as hairan of the oission on Elections is andated

by Section $(6) Sub-Article , Article *+ of the onstitution which provides

#he hairan and the oisioners shall be appointed by the /resident with

the consent of the oission on Appointents for a ter of seven years

without reappointent. 7f those first appointed, three Mebers shall hold office


19/21

for seven years, two Mebers for five years, and the last Mebers for three

years, without reappointent. Appointent to any vacancy shall be only for the

une"pired ter of the predecessor. *n no case shall any Meber be appointed or

designated in a teporary or acting capacity.

Anent Justice #eodoro /adilla!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 fro the odern concept of the practice of law, which

odern connotation is e7actly what was intended by the einent fraers of the

9:=; Constitution.Moreover, Justice /adilla!s definition would re3uire generally a

habitual law practice, perhaps practised two or three ties a wee= and would

outlawsay, law practice once or twice a year for ten consecutive years. learly,

this is far fro the constitutional intent.

pon the other hand, the separate opinion of Justice *sagani ru states that in

y written opinion, * ade use of a definition of law practice which really eans

nothing because the definition says that law practice B . . . is what people

ordinarily ean by the practice of law.B #rue * cited the definition but only by way

of sarcas as evident fro y stateent that the definition of law practice by

Btraditional areas of law practice is essentially tautologousB or defining a phraseby eans of the phrase itself that is being defined.

Justice ru goes on to say in substance that since the law covers alost all

situations, ost individuals, in a=ing use of the law, or in advising others on

what the law eans, are actually practicing law. *n that sense, perhaps, but we

should not lose sight of the fact that Mr. Monsod is a lawyer, a eber of the

Philippine %ar, who has been practising law for over ten years. #his is different

fro the acts of persons practising law, without first becoing lawyers.

Justice ru also says that the Supree ourt can even dis3ualify an elected

/resident of the /hilippines, say, on the ground that he lac=s one or ore

3ualifications. #his atter, * greatly doubt. Cor one thing, how can an action or

petition be brought against the /resident And even assuing that he is indeed

dis3ualified, how can the action be entertained since he is the incubent


20/21

/resident

We now proceed

#he oission on the basis of evidence subitted doling the public hearings

on Monsod!s confiration, iplicitly deterined that he possessed the necessary

3ualifications as re3uired by law. #he 1udgent rendered by the oission in

the e"ercise of such an ac=nowledged power is beyond 1udicial interference

e"cept only upon a clear showing of a grave abuse of discretion aounting to

lac= or e"cess of 1urisdiction. (Art. >***, Sec. $ onstitution). #hus, only where

such grave abuse of discretion is clearly shown shall the ourt interfere with the

oission!s 1udgent. *n the instant case, there is no occasion for the e"ercise

of the ourt!s corrective power, since no abuse, uch less a grave abuse of

discretion, that would aount to lac= or e"cess of 1urisdiction and would warrant

the issuance of the writs prayed, for has been clearly shown.

Additionally, consider the following

($) *f the oission on Appointents re!ectsa noinee by the /resident, ay

the Supree ourt reverse the oission, and thus in effect confir the

appointent learly, the answer is in the negative.

(6) *n the sae vein, ay the ourt re!ectthe noinee, who the oission

has confired #he answer is li=ewise clear.(4) *f the nited States Senate (which is the confiring body in the .S.

ongress) decides to confira /residential noinee, it would be incredible that

the .S. Supree ourt would still reversethe .S. Senate.

Cinally, one significant legal a"i is

We ust interpret not by the letter that =illeth, but by the spirit that giveth life.

#a=e this hypothetical case of Sason and Felilah. 7nce, the procurator of

Judea as=ed Felilah (who was Sason!s beloved) for help in capturing Sason.

Felilah agreed on condition that I

8o blade shall touch his s=in

Documents

Cayetano vs. Monsod- G.R. No. 100113 September 3, 1991