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Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. 100113 September 3, 1991

RENATO CAYETANO, petitioner,vs.CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON APPOINTMENT, andHON. GUILLERMO CARAGUE, in his capacity as Secretary of Budget andManagement, respondents.

Renato L. Cayetano for and in his own behalf.

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

PARAS, J .:p

We are faced here with a controversy of far-reaching proportions. While ostensibly only legal issuesare involved, the Court's decision in this case would indubitably have a profound effect on thepolitical aspect of our national existence.

The 1987 Constitution provides in Section 1 (1), Article IX-C:

There shall be a Commission on Elections composed of a Chairman and sixCommissioners who shall be natural-born citizens of the Philippines and, at the time

of their appointment, at least thirty-five years of age, holders of a college degree, andmust not have been candidates for any elective position in the immediately preceding-elections. However, a majority thereof, including the Chairman, shall be members ofthe Philippine Bar who have been engaged in the practice of law for at least tenyears. (Emphasis supplied)

The aforequoted provision is patterned after Section l(l), Article XII-C of the 1973 Constitution whichsimilarly provides:

There shall be an independent Commission on Elections composed of a Chairman and eightCommissioners who shall be natural-born citizens of the Philippines and, at the time of theirappointment, at least thirty-five years of age and holders of a college degree. However, a majority

thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged inthe practice of law for at least ten years.' (Emphasis supplied)

Regrettably, however, there seems to be no jurisprudence as to what constitutes practice of law as alegal qualification to an appointive office.

Black defines "practice of law" as:


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The rendition of services requiring the knowledge and the application of legalprinciples and technique to serve the interest of another with his consent. It is notlimited to appearing in court, or advising and assisting in the conduct of litigation, butembraces the preparation of pleadings, and other papers incident to actions andspecial proceedings, conveyancing, the preparation of legal instruments of all kinds,and the giving of all legal advice to clients. It embraces all advice to clients and all

actions taken for them in matters connected with the law. An attorney engages in thepractice of law by maintaining an office where he is held out to be-an attorney, usinga letterhead describing himself as an attorney, counseling clients in legal matters,negotiating with opposing counsel about pending litigation, and fixing and collectingfees for services rendered by his associate. (Black's Law Dictionary, 3rd ed.)

The practice of law is not limited to the conduct of cases in court. (Land Title Abstract and Trust Co.v. Dworken,129 Ohio St. 23, 193 N.E. 650) A person is also considered to be in the practice of lawwhen he:

... for valuable consideration engages in the business of advising person, firms,associations or corporations as to their rights under the law, or appears in arepresentative capacity as an advocate in proceedings pending or prospective,before any court, commissioner, referee, board, body, committee, or commissionconstituted by law or authorized to settle controversies and there, in suchrepresentative capacity performs any act or acts for the purpose of obtaining ordefending the rights of their clients under the law. Otherwise stated, one who, in arepresentative capacity, engages in the business of advising clients as to their rightsunder the law, or while so engaged performs any act or acts either in court or outsideof court for that purpose, is engaged in the practice of law. (State ex. rel. Mckittrickv..C.S. Dudley and Co.,102 S.W. 2d 895, 340 Mo. 852)

This Court in the case of Philippine Lawyers Association v.Agrava, (105 Phil. 173,176-177) stated:

The practice of lawis not limited to the conduct of cases or litigation in court; it

embraces the preparation of pleadings and other papers incident to actions andspecial proceedings, the management of such actions and proceedings on behalf ofclients before judges and courts, and in addition, conveying. In general, all advice toclients, and all action taken for them in mattersconnected with the lawincorporationservices, assessment and condemnation services contemplating an appearancebefore a judicial body, the foreclosure of a mortgage, enforcement of a creditor'sclaim in bankruptcy and insolvency proceedings, and conducting proceedings inattachment, and in matters of estate and guardianship have been held to constitutelaw practice, as do the preparation and drafting of legal instruments, where the workdone involves the determination by the trained legal mind of the legal effect of factsand conditions. (5 Am. Jr. p. 262, 263). (Emphasis supplied)

Practice of lawunder modem conditions consists in no small part of work performedoutside of any court and having no immediate relation to proceedings in court. Itembraces conveyancing, the giving of legal advice on a large variety of subjects, andthe preparation and execution of legal instruments covering an extensive field ofbusiness and trust relations and other affairs.Although these transactions may haveno direct connection with court proceedings, they are always subject to becomeinvolved in litigation. They require in many aspects a high degree of legal skill, a wideexperience with men and affairs, and great capacity for adaptation to difficult andcomplex situations. These customary functions of an attorney or counselor at law


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bear an intimate relation to the administration of justice by the courts. No validdistinction, so far as concerns the question set forth in the order, can be drawnbetween that part of the work of the lawyer which involves appearance in court andthat part which involves advice and drafting of instruments in his office. It is ofimportance to the welfare of the public that these manifold customary functions beperformed by persons possessed of adequate learning and skill, of sound moral

character, and acting at all times under the heavy trust obligations to clients whichrests upon all attorneys. (Moran, Comments on the Rules of Court, Vol. 3 [1953 ed.] ,p. 665-666, citing In re Opinion of the Justices[Mass.], 194 N.E. 313, quotedin Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 179 A. 139,144).(Emphasis ours)

The University of the Philippines Law Center in conducting orientation briefing for new lawyers(1974-1975) listed the dimensions of the practice of law in even broader terms as advocacy,counselling and public service.

One may be a practicing attorney in following any line of employment in theprofession. If what he does exacts knowledge of the law and is of a kind usual forattorneys engaging in the active practice of their profession, and he follows someone or more lines of employment such as this he is a practicing attorney at law withinthe meaning of the statute. (Barr v. Cardell, 155 NW 312)

Practice of law means any activity, in or out of court, which requires the application of law, legalprocedure, knowledge, training and experience. "To engage in the practice of law is to perform thoseacts which are characteristics of the profession. Generally, to practice law is to give notice or renderany kind of service, which device or service requires the use in any degree of legal knowledge orskill." (111 ALR 23)

The following records of the 1986 Constitutional Commission show that it has adopted a liberalinterpretation of the term "practice of law."

MR. FOZ. Before we suspend the session, may I make amanifestation which I forgot to do during our review of the provisionson the Commission on Audit. May I be allowed to make a very briefstatement?

THE PRESIDING OFFICER (Mr. Jamir).

The Commissioner will please proceed.

MR. FOZ. This has to do with the qualifications of the members of theCommission on Audit. Among others, the qualifications provided forby Section I is that "They must be Members of the Philippine Bar" I

am quoting from the provision "who have been engaged in thepractice of law for at least ten years".

To avoid any misunderstanding which would result in excluding members of the Barwho are now employed in the COA or Commission on Audit, we would like to makethe clarification that this provision on qualifications regarding members of the Bardoes not necessarily refer or involve actual practice of law outside the COA We haveto interpret this to mean that as long as the lawyers who are employed in the COAare using their legal knowledge or legal talent in their respective work within COA,


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then they are qualified to be considered for appointment as members orcommissioners, even chairman, of the Commission on Audit.

This has been discussed by the Committee on Constitutional Commissions andAgencies and we deem it important to take it up on the floor so that this interpretationmay be made available whenever this provision on the qualifications as regards

members of the Philippine Bar engaging in the practice of law for at least ten years istaken up.

MR. OPLE. Will Commissioner Foz yield to just one question.

MR. FOZ. Yes, Mr. Presiding Officer.

MR. OPLE. Is he, in effect, saying that service in the COA by alawyer is equivalent to the requirement of a law practice that is setforth in the Article on the Commission on Audit?

MR. FOZ. We must consider the fact that the work of COA, although

it is auditing, will necessarily involve legal work; it will involve legalwork. And, therefore, lawyers who are employed in COA now wouldhave the necessary qualifications in accordance with the Provision onqualifications under our provisions on the Commission on Audit. And,therefore, the answer is yes.

MR. OPLE. Yes. So that the construction given to this is that this isequivalent to the practice of law.

MR. FOZ. Yes, Mr. Presiding Officer.

MR. OPLE.Thank you.

... ( Emphasis supplied)

Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that the Chairman andtwo Commissioners of the Commission on Audit (COA) should either be certified public accountantswith not less than ten years of auditing practice, or members of the Philippine Bar who have beenengaged in thepractice of lawfor at least ten years. (emphasis supplied)

Corollary to this is the term "private practitioner" and which is in many ways synonymous with theword "lawyer." Today, although many lawyers do not engage in private practice, it is still a fact thatthe majority of lawyers are private practitioners. (Gary Munneke, Opportunities in Law Careers[VGMCareer Horizons: Illinois], [1986], p. 15).

At this point, it might be helpful to defineprivate practice. The term, as commonly understood,means "an individual or organization engaged in the business of delivering legal services." (Ibid.).Lawyers who practice alone are often called "sole practitioners." Groups of lawyers are called"firms." The firm is usually a partnership and members of the firm are the partners. Some firms maybe organized as professional corporations and the members called shareholders. In either case, themembers of the firm are the experienced attorneys. In most firms, there are younger or moreinexperienced salaried attorneyscalled "associates." (Ibid.).


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The test that defines law practice by looking to traditional areas of law practice is essentiallytautologous, unhelpful defining the practice of law as that which lawyers do. (Charles W.Wolfram, Modern Legal Ethics[West Publishing Co.: Minnesota, 1986], p. 593). The practice of lawis defined as the performance of any acts . . . in or out of court, commonly understood to be thepractice of law. (State Bar Ass'n v. Connecticut Bank & Trust Co., 145 Conn. 222, 140 A.2d 863, 870[1958] [quoting Grievance Comm. v. Payne, 128 Conn. 325, 22 A.2d 623, 626 [1941]). Because

lawyers perform almost every function known in the commercial and governmental realm, such adefinition would obviously be too global to be workable.(Wolfram, op. cit.).

The appearance of a lawyer in litigation in behalf of a client is at once the most publicly familiar rolefor lawyers as well as an uncommon role for the average lawyer. Most lawyers spend little time incourtrooms, and a large percentage spend their entire practice without litigating a case. ( Ibid., p.593). Nonetheless, many lawyers do continue to litigate and the litigating lawyer's role colors muchof both the public image and the self perception of the legal profession. (Ibid.).

In this regard thus, the dominance of litigation in the public mind reflects history, not reality. (Ibid.).Why is this so? Recall that the late Alexander SyCip, a corporate lawyer, once articulated on theimportance of a lawyer as a business counselor in this wise: "Even today, there are still uninformedlaymen whose concept of an attorney is one who principally tries cases before the courts. Themembers of the bench and bar and the informed laymen such as businessmen, know that in mostdeveloped societies today, substantially more legal work is transacted in law offices than in thecourtrooms. General practitioners of law who do both litigation and non-litigation work also know thatin most cases they find themselves spending more time doing what [is] loosely desccribe[d] asbusiness counseling than in trying cases. The business lawyer has been described as the planner,the diagnostician and the trial lawyer, the surgeon. I[t] need not [be] stress[ed] that in law, as inmedicine, surgery should be avoided where internal medicine can be effective." (Business Star,"Corporate Finance Law," Jan. 11, 1989, p. 4).

In the course of a working day the average general practitioner wig engage in a number of legaltasks, each involving different legal doctrines, legal skills, legal processes, legal institutions, clients,and other interested parties. Even the increasing numbers of lawyers in specialized practice wig

usually perform at least some legal services outside their specialty. And even within a narrowspecialty such as tax practice, a lawyer will shift from one legal task or role such as advice-giving toan importantly different one such as representing a client before an administrative agency.(Wolfram, supra, p. 687).

By no means will most of this work involve litigation, unless the lawyer is one of the relatively raretypes a litigator who specializes in this work to the exclusion of much else. Instead, the work willrequire the lawyer to have mastered the full range of traditional lawyer skills of client counselling,advice-giving, document drafting, and negotiation. And increasingly lawyers find that the new skills ofevaluation and mediation are both effective for many clients and a source of employment. ( Ibid.).

Most lawyers will engage in non-litigation legal work or in litigation work that is constrained in very

important ways, at least theoretically, so as to remove from it some of the salient features ofadversarial litigation. Of these special roles, the most prominent is that of prosecutor. In somelawyers' work the constraints are imposed both by the nature of the client and by the way in whichthe lawyer is organized into a social unit to perform that work. The most common of these roles arethose of corporate practice and government legal service. ( Ibid.).

In several issues of the Business Star, a business daily, herein below quoted are emerging trends incorporate law practice, a departure from the traditional concept of practice of law.


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We are experiencing today what truly may be called a revolutionary transformation incorporate law practice. Lawyers and other professional groups, in particular thosemembers participating in various legal-policy decisional contexts, are finding thatunderstanding the major emerging trends in corporation law is indispensable tointelligent decision-making.

Constructive adjustment to major corporate problems of today requires an accurateunderstanding of the nature and implications of the corporate law research functionaccompanied by an accelerating rate of information accumulation. The recognition ofthe need for such improved corporate legal policy formulation, particularly "model-making" and "contingency planning," has impressed upon us the inadequacy oftraditional procedures in many decisional contexts.

In a complex legal problem the mass of information to be processed, the sorting andweighing of significant conditional factors, the appraisal of major trends, thenecessity of estimating the consequences of given courses of action, and the needfor fast decision and response in situations of acute danger have prompted the useof sophisticated concepts of information flow theory, operational analysis, automaticdata processing, and electronic computing equipment. Understandably, an improveddecisional structure must stress the predictive component of the policy-makingprocess, wherein a "model", of the decisional context or a segment thereof isdeveloped to test projected alternative courses of action in terms of futuristic effectsflowing therefrom.

Although members of the legal profession are regularly engaged in predicting andprojecting the trends of the law, the subject of corporate finance law has receivedrelatively little organized and formalized attention in the philosophy of advancingcorporate legal education. Nonetheless, a cross-disciplinary approach to legalresearch has become a vital necessity.

Certainly, the general orientation for productive contributions by those trained

primarily in the law can be improved through an early introduction to multi-variabledecisional context and the various approaches for handling such problems. Lawyers,particularly with either a master's or doctorate degree in business administration ormanagement, functioning at the legal policy level of decision-making now have someappreciation for the concepts and analytical techniques of other professions whichare currently engaged in similar types of complex decision-making.

Truth to tell, many situations involving corporate finance problems would require theservices of an astute attorney because of the complex legal implications that arisefrom each and every necessary step in securing and maintaining the business issueraised. (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).

In our litigation-prone country, a corporate lawyer is assiduously referred to as the"abogado de campanilla." He is the "big-time" lawyer, earning big money and with aclientele composed of the tycoons and magnates of business and industry.

Despite the growing number of corporate lawyers, many people could not explainwhat it is that a corporate lawyer does. For one, the number of attorneys employedby a single corporation will vary with the size and type of the corporation. Manysmaller and some large corporations farm out all their legal problems to private law


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firms. Many others have in-house counsel only for certain matters. Other corporationhave a staff large enough to handle most legal problems in-house.

A corporate lawyer, for all intents and purposes, is a lawyer who handles the legalaffairs of a corporation. His areas of concern or jurisdiction may include, inter alia:corporate legal research, tax laws research, acting out as corporate secretary (in

board meetings), appearances in both courts and other adjudicatory agencies(including the Securities and Exchange Commission), and in other capacities whichrequire an ability to deal with the law.

At any rate, a corporate lawyer may assume responsibilities other than the legalaffairs of the business of the corporation he is representing. These include suchmatters as determining policy and becoming involved in management. ( Emphasissupplied.)

In a big company, for example, one may have a feeling of being isolated from theaction, or not understanding how one's work actually fits into the work of theorgarnization. This can be frustrating to someone who needs to see the results of his

work first hand. In short, a corporate lawyer is sometimes offered this fortune to bemore closely involved in the running of the business.

Moreover, a corporate lawyer's services may sometimes be engaged by amultinational corporation (MNC). Some large MNCs provide one of the fewopportunities available to corporate lawyers to enter the international law field. Afterall, international law is practiced in a relatively small number of companies and lawfirms. Because working in a foreign country is perceived by many as glamorous, tillsis an area coveted by corporate lawyers. In most cases, however, the overseas jobsgo to experienced attorneys while the younger attorneys do their "internationalpractice" in law libraries. (Business Star, "Corporate Law Practice," May 25,1990, p.4).

This brings us to the inevitable, i.e., the role of the lawyer in the realm of finance. Toborrow the lines of Harvard-educated lawyer Bruce Wassertein, to wit: "A bad lawyeris one who fails to spot problems, a good lawyer is one who perceives the difficulties,and the excellent lawyer is one who surmounts them." (Business Star, "CorporateFinance Law," Jan. 11, 1989, p. 4).

Today, the study of corporate law practice direly needs a "shot in the arm," so tospeak. No longer are we talking of the traditional law teaching method of confiningthe subject study to the Corporation Code and the Securities Code but an incursionas well into the intertwining modern management issues.

Such corporate legal management issues deal primarily with three (3) types of

learning: (1) acquisition of insights into current advances which are of particularsignificance to the corporate counsel; (2) an introduction to usable disciplinary skinsapplicable to a corporate counsel's management responsibilities; and (3) a devotionto the organization and management of the legal function itself.

These three subject areas may be thought of as intersecting circles, with a sharedarea linking them. Otherwise known as "intersecting managerial jurisprudence," itforms a unifying theme for the corporate counsel's total learning.


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Some current advances in behavior and policy sciences affect the counsel's role. Forthat matter, the corporate lawyer reviews the globalization process, including theresulting strategic repositioning that the firms he provides counsel for are required tomake, and the need to think about a corporation's; strategy at multiple levels. Thesalience of the nation-state is being reduced as firms deal both with globalmultinational entities and simultaneously with sub-national governmental units. Firms

increasingly collaborate not only with public entities but with each other often withthose who are competitors in other arenas.

Also, the nature of the lawyer's participation in decision-making within the corporationis rapidly changing. The modem corporate lawyer has gained a new role as astakeholder in some cases participating in the organization and operations ofgovernance through participation on boards and other decision-making roles. Oftenthese new patterns develop alongside existing legal institutions and laws areperceived as barriers. These trends are complicated as corporations organize forglobal operations. ( Emphasis supplied)

The practising lawyer of today is familiar as well with governmental policies towardthe promotion and management of technology. New collaborative arrangements for

promoting specific technologies or competitiveness more generally requireapproaches from industry that differ from older, more adversarial relationships andtraditional forms of seeking to influence governmental policies. And there are lessonsto be learned from other countries. In Europe, Esprit, Eurekaand Raceare examplesof collaborative efforts between governmental and business Japan's MITIis worldfamous. (Emphasis supplied)

Following the concept of boundary spanning, the office of the Corporate Counselcomprises a distinct group within the managerial structure of all kinds oforganizations. Effectiveness of both long-term and temporary groups withinorganizations has been found to be related to indentifiable factors in the group-context interaction such as the groups actively revising their knowledge of the

environment coordinating work with outsiders, promoting team achievements withinthe organization. In general, such external activities are better predictors of teamperformance than internal group processes.

In a crisis situation, the legal managerial capabilities of the corporate lawyer vis-a-visthe managerial mettle of corporations are challenged. Current research is seekingways both to anticipate effective managerial procedures and to understandrelationships of financial liability and insurance considerations. (Emphasis supplied)

Regarding the skills to apply by the corporate counsel, three factors are apropos:

First System Dynamics. The field of systems dynamics has been found an effective

tool for new managerial thinking regarding both planning and pressing immediateproblems. An understanding of the role of feedback loops, inventory levels, and ratesof flow, enable users to simulate all sorts of systematic problems physical,economic, managerial, social, and psychological. New programming techniques nowmake the system dynamics principles more accessible to managers includingcorporate counsels. (Emphasis supplied)

Second Decision Analysis. This enables users to make better decisions involvingcomplexity and uncertainty. In the context of a law department, it can be used to


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appraise the settlement value of litigation, aid in negotiation settlement, and minimizethe cost and risk involved in managing a portfolio of cases. (Emphasis supplied)

Third Modeling for Negotiation Management. Computer-based models can be useddirectly by parties and mediators in all lands of negotiations. All integrated set of suchtools provide coherent and effective negotiation support, including hands-on on

instruction in these techniques. A simulation case of an international joint venturemay be used to illustrate the point.

[Be this as it may,] the organization and management of the legal function, concernthree pointed areas of consideration, thus:

Preventive Lawyering. Planning by lawyers requires special skills that comprise amajor part of the general counsel's responsibilities. They differ from those of remediallaw. Preventive lawyering is concerned with minimizing the risks of legal trouble andmaximizing legal rights for such legal entities at that time when transactional orsimilar facts are being considered and made.

Managerial Jurisprudence. This is the framework within which are undertaken thoseactivities of the firm to which legal consequences attach. It needs to be directlysupportive of this nation's evolving economic and organizational fabric as firmschange to stay competitive in a global, interdependent environment. The practice andtheory of "law" is not adequate today to facilitate the relationships needed in trying tomake a global economy work.

Organization and Functioning of the Corporate Counsel's Office. The general counselhas emerged in the last decade as one of the most vibrant subsets of the legalprofession. The corporate counsel hear responsibility for key aspects of the firm'sstrategic issues, including structuring its global operations, managing improvedrelationships with an increasingly diversified body of employees, managing expandedliability exposure, creating new and varied interactions with public decision-makers,coping internally with more complex make or by decisions.

This whole exercise drives home the thesis that knowing corporate law is not enoughto make one a good general corporate counsel nor to give him a full sense of howthe legal system shapes corporate activities. And even if the corporate lawyer's aimis not the understand all of the law's effects on corporate activities, he must, at thevery least, also gain a working knowledge of the management issues if only to beable to grasp not only the basic legal "constitution' or makeup of the modemcorporation. "Business Star", "The Corporate Counsel," April 10, 1991, p. 4).

The challenge for lawyers (both of the bar and the bench) is to have more than apassing knowledge of financial law affecting each aspect of their work. Yet, many

would admit to ignorance of vast tracts of the financial law territory. What transpiresnext is a dilemma of professional security: Will the lawyer admit ignorance and riskopprobrium?; or will he feign understanding and risk exposure? (Business Star,"Corporate Finance law," Jan. 11, 1989, p. 4).

Respondent Christian Monsod was nominated by President Corazon C. Aquino to the position ofChairman of the COMELEC in a letter received by the Secretariat of the Commission on

Appointments on April 25, 1991. Petitioner opposed the nomination because allegedly Monsod does


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not possess the required qualification of having been engaged in the practice of law for at least tenyears.

On June 5, 1991, the Commission on Appointments confirmed the nomination of Monsod asChairman of the COMELEC. On June 18, 1991, he took his oath of office. On the same day, heassumed office as Chairman of the COMELEC.

Challenging the validity of the confirmation by the Commission on Appointments of Monsod'snomination, petitioner as a citizen and taxpayer, filed the instant petition for certiorari and Prohibitionpraying that said confirmation and the consequent appointment of Monsod as Chairman of theCommission on Elections be declared null and void.

Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar examinations of1960 with a grade of 86-55%. He has been a dues paying member of the Integrated Bar of thePhilippines since its inception in 1972-73. He has also been paying his professional license fees aslawyer for more than ten years. (p. 124, Rollo)

After graduating from the College of Law (U.P.) and having hurdled the bar,Atty. Monsod worked in

the law office of his father. During his stint in the World Bank Group (1963-1970), Monsod worked asan operations officer for about two years in Costa Rica and Panama, which involved gettingacquainted with the laws of member-countries negotiating loans and coordinating legal, economic,and project work of the Bank. Upon returning to the Philippines in 1970, he worked with the MeralcoGroup, served as chief executive officer of an investment bank and subsequently of a businessconglomerate, and since 1986, has rendered services to various companies as a legal andeconomic consultant or chief executive officer. As former Secretary-General (1986) and NationalChairman (1987) of NAMFREL. Monsod's work involved being knowledgeable in election law. Heappeared for NAMFREL in its accreditation hearings before the Comelec. In the field of advocacy,Monsod, in his personal capacity and as former Co-Chairman of the Bishops Businessmen'sConference for Human Development, has worked with the under privileged sectors, such as thefarmer and urban poor groups, in initiating, lobbying for and engaging in affirmative action for theagrarian reform law and lately the urban land reform bill. Monsod also made use of his legal

knowledge as a member of the Davide Commission, a quast judicial body, which conductednumerous hearings (1990) and as a member of the Constitutional Commission (1986-1987), andChairman of its Committee on Accountability of Public Officers, for which he was cited by thePresident of the Commission, Justice Cecilia Muoz-Palma for "innumerable amendments toreconcile government functions with individual freedoms and public accountability and the party-listsystem for the House of Representative. (pp. 128-129 Rollo) ( Emphasis supplied)

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

In a loan agreement, for instance, a negotiating panel acts as a team, and which isadequately constituted to meet the various contingencies that arise during anegotiation. Besides top officials of the Borrower concerned, there are the legal

officer (such as the legal counsel), the finance manager, and an operationsofficer(such as an official involved in negotiating the contracts) who comprise themembers of the team. (Guillermo V. Soliven, "Loan Negotiating Strategies forDeveloping Country Borrowers," Staff Paper No. 2, Central Bank of the Philippines,Manila, 1982, p. 11). (Emphasis supplied)

After a fashion, the loan agreement is like a country's Constitution; it lays down thelaw as far as the loan transaction is concerned. Thus, the meat of any Loan

Agreement can be compartmentalized into five (5) fundamental parts: (1) business


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terms; (2) borrower's representation; (3) conditions of closing; (4) covenants; and (5)events of default. (Ibid., p. 13).

In the same vein, lawyers play an important role in any debt restructuring program.For aside from performing the tasks of legislative drafting and legal advising, theyscore national development policies as key factors in maintaining their countries'

sovereignty. (Condensed from the work paper, entitled "Wanted: DevelopmentLawyers for Developing Nations," submitted by L. Michael Hager, regional legaladviser of the United States Agency for International Development, during theSession on Law for the Development of Nations at the Abidjan World Conference inIvory Coast, sponsored by the World Peace Through Law Center on August 26-31,1973). ( Emphasis supplied)

Loan concessions and compromises, perhaps even more so than purelyrenegotiation policies, demand expertise in the law of contracts, in legislation andagreement drafting and in renegotiation. Necessarily, a sovereign lawyer may workwith an international business specialist or an economist in the formulation of amodel loan agreement. Debt restructuring contract agreements contain such amixture of technical language that they should be carefully drafted and signed onlywith the advise of competent counsel in conjunction with the guidance of adequatetechnical support personnel. (See International Law Aspects of the PhilippineExternal Debts, an unpublished dissertation, U.S.T. Graduate School of Law, 1987,p. 321). ( Emphasis supplied)

A critical aspect of sovereign debt restructuring/contract construction is the set ofterms and conditions which determines the contractual remedies for a failure toperform one or more elements of the contract. A good agreement must not onlydefine the responsibilities of both parties, but must also state the recourse open toeither party when the other fails to discharge an obligation. For a compleat debtrestructuring represents a devotion to that principle which in the ultimate analysisis sine qua nonfor foreign loan agreements-an adherence to the rule of law in

domestic and international affairs of whose kind U.S. Supreme Court Justice OliverWendell Holmes, Jr. once said: "They carry no banners, they beat no drums; butwhere they are, men learn that bustle and bush are not the equal of quiet genius andserene mastery." (See Ricardo J. Romulo, "The Role of Lawyers in ForeignInvestments," Integrated Bar of the Philippine Journal, Vol. 15, Nos. 3 and 4, Thirdand Fourth Quarters, 1977, p. 265).

Interpreted in the light of the various definitions of the term Practice of law". particularly the modernconcept of law practice, and taking into consideration the liberal construction intended by the framersof the Constitution, Atty. Monsod's past work experiences as a lawyer-economist, a lawyer-manager,a lawyer-entrepreneur of industry, a lawyer-negotiator of contracts, and a lawyer-legislator of boththe rich and the poor verily more than satisfy the constitutional requirement that he has beenengaged in the practice of law for at least ten years.

Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA 327, the Court said:

Appointment is an essentially discretionary powerand must be performed by theofficer in which it is vested according to his best lights, the only condition being thatthe appointee should possess the qualifications required by law. If he does, then theappointment cannot be faulted on the ground that there are others better qualified


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who should have been preferred. This is a political question involving considerationsof wisdom which only the appointing authority can decide. (emphasis supplied)

No less emphatic was the Court in the case of (Central Bank v. Civil Service Commission, 171SCRA 744) where it stated:

It is well-settled that when the appointee is qualified, as in this case, and all the otherlegal requirements are satisfied, the Commission has no alternative but to attest tothe appointment in accordance with the Civil Service Law. The Commission has noauthority to revoke an appointment on the ground that another person is morequalified for a particular position. It also has no authority to direct the appointment ofa substitute of its choice. To do so would be an encroachment on the discretionvested upon the appointing authority. An appointment is essentially within thediscretionary power of whomsoever it is vested, subject to the only condition that theappointee should possess the qualifications required by law. ( Emphasis supplied)

The appointing process in a regular appointment as in the case at bar, consists of four (4) stages: (1)nomination; (2) confirmation by the Commission on Appointments; (3) issuance of a commission (in

the Philippines, upon submission by the Commission on Appointments of its certificate ofconfirmation, the President issues the permanent appointment; and (4) acceptance e.g., oath-taking,posting of bond, etc. . . . (Lacson v. Romero, No. L-3081, October 14, 1949; Gonzales, Law onPublic Officers, p. 200)

The power of the Commission on Appointments to give its consent to the nomination of Monsod asChairman of the Commission on Elections is mandated by Section 1(2) Sub-Article C, Article IX ofthe Constitution which provides:

The Chairman and the Commisioners shall be appointed by the President with theconsent of the Commission on Appointments for a term of seven years withoutreappointment. Of those first appointed, three Members shall hold office for sevenyears, two Members for five years, and the last Members for three years, withoutreappointment. Appointment to any vacancy shall be only for the unexpired term ofthe predecessor. In no case shall any Member be appointed or designated in atemporary or acting capacity.

Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his definition ofthe practice of law is the traditional or stereotyped notion of law practice, asdistinguished from the modern concept of the practice of law, which modernconnotation is exactly what was intended by the eminent framers of the 1987Constitution.Moreover, Justice Padilla's definition would require generally a habituallaw practice, perhaps practised two or three times a week and would outlawsay, lawpractice once or twice a year for ten consecutive years. Clearly, this is far from theconstitutional intent.

Upon the other hand, the separate opinion of Justice Isagani Cruz states that in my written opinion, Imade use of a definition of law practice which really means nothing because the definition says thatlaw practice " . . . is what people ordinarily mean by the practice of law." True I cited the definition butonly by way of sarcasm as evident from my statement that the definition of law practice by"traditional areas of law practice is essentially tautologous" or defining a phrase by means of thephrase itself that is being defined.


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Justice Cruz goes on to say in substance that since the law covers almost all situations, mostindividuals, in making use of the law, or in advising others on what the law means, are actuallypracticing law. In that sense, perhaps, but we should not lose sight of the fact that Mr. Monsod is alawyer, a member of the Philippine Bar, who has been practising law for over ten years. This isdifferent from the acts of persons practising law, without first becoming lawyers.

Justice Cruz also says that the Supreme Court can even disqualify an elected President of thePhilippines, say, on the ground that he lacks one or more qualifications. This matter, I greatly doubt.For one thing, how can an action or petition be brought against the President? And even assumingthat he is indeed disqualified, how can the action be entertained since he is the incumbentPresident?

We now proceed:

The Commission on the basis of evidence submitted doling the public hearings on Monsod'sconfirmation, implicitly determined that he possessed the necessary qualifications as required bylaw. The judgment rendered by the Commission in the exercise of such an acknowledged power isbeyond judicial interference except only upon a clear showing of a grave abuse of discretion

amounting to lack or excess of jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only where suchgrave abuse of discretion is clearly shown shall the Court interfere with the Commission's judgment.In the instant case, there is no occasion for the exercise of the Court's corrective power, since noabuse, much less a grave abuse of discretion, that would amount to lack or excess of jurisdictionand would warrant the issuance of the writs prayed, for has been clearly shown.

Additionally, consider the following:

(1) If the Commission on Appointments rejectsa nominee by the President, may theSupreme Court reverse the Commission, and thus in effect confirmthe appointment?Clearly, the answer is in the negative.

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

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

Finally, one significant legal maxim is:

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

Take this hypothetical case of Samson and Delilah. Once, the procurator of Judea asked Delilah(who was Samson's beloved) for help in capturing Samson. Delilah agreed on condition that

No blade shall touch his skin;

No blood shall flow from his veins.

When Samson (his long hair cut by Delilah) was captured, the procurator placed an iron rod burningwhite-hot two or three inches away from in front of Samson's eyes. This blinded the man. Uponhearing of what had happened to her beloved, Delilah was beside herself with anger, and fuming


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with righteous fury, accused the procurator of reneging on his word. The procurator calmly replied:"Did any blade touch his skin? Did any blood flow from his veins?" The procurator was clearly relyingon the letter, not the spirit of the agreement.

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

SO ORDERED.

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

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

Sarmiento, J., is on leave.

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

[G.R. Nos. 89591-96. January 24, 2000]

PEOPLE OF THE PHILIPPINES, peti tioner, vs.HON. BONIFACIO SANZ

MACEDA, Presiding Judge of Branch 12, Regional Trial Court of Antique, and

AVELINO T. JAVELLANA, respondents.

R E S O L U T I O N

PARDO, J.:

On September 8, 1999, we denied the Peoples motion seeking reconsideration of our

August 13, 1990 decision in these cases. In said resolution, we held that respondent

Judge Bonifacio Sanz Maceda committed no grave abuse of discretion in issuing the

order of August 8, 1989 giving custody over private respondent Avelino T. Javellana

to the Clerk of Court of the Regional Trial Court, Branch 12, San Jose, Antique, Atty.

Deogracias del Rosario, during the pendency of Criminal Cases Nos. 3350-3355. At

that time, sufficient reason was shown why private respondent Javellana should not bedetained at the Antique Provincial Jail. The trial courts order specifically provided

for private respondents detention at the residence of Atty. del Rosario. However,

private respondent was not to be allowed liberty to roam around but was to be held as

detention prisoner in said residence.


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This order of the trial court was not strictly complied with because private respondent

was not detained in the residence of Atty. Del Rosario. He went about his normal

activities as if he were a free man, including engaging in the practice of law. Despite

our resolution of July 30, 1990 prohibiting private respondent to appear as counsel in

Criminal Case No. 4262,[1]the latter accepted cases and continued practicing law.

On April 7, 1997, Senior State Prosecutor Henrick F. Guingoyon filed with the

Supreme Court a motion seeking clarification on the following questions: "(1) Does

the resolution of this Honorable Court dated July 30, 1990, prohibiting Atty. Javellana

from appearing as counsel refer only to Criminal Case No. 4262? (2) Is Atty. now

(Judge) Deogracias del Rosario still the custodian of Atty. Javellana? and (3) Since it

appears that Atty. (now Judge) del Rosario never really held and detained Atty.

Javellana as prisoner in his residence, is not Atty. Javellana considered an escapee or a

fugitive of justice for which warrant for his arrest should forthwith be

issued?"[2]

In a resolution dated June 18, 1997, we "noted" the above motion.

After we denied the motion for reconsideration on September 8, 1999, the trial court

resumed hearing Criminal Cases Nos. 3350-3355. Earlier, on August 2, 1999,

Rolando Mijares filed with the Regional Trial Court, Branch 12, San Jose, Antique, a

motion seeking the revocation of the trial courts custody order and the imprisonment

of private respondent Javellana in the provincial jail.

On November 15, 1999, private respondent Javellana filed with the Supreme Court an

urgent motion seeking to clarify whether the June 18, 1997 resolution finallyterminated or resolved the motion for clarification filed by the State Prosecutor on

April 7, 1997.

Private respondent Javellana has been arrested based on the filing of criminal cases

against him. By such arrest, he is deemed to be under the custody of the law. The trial

court gave Atty. Deogracias del Rosario the custody of private respondent Javellana

with the obligation "to hold and detain" him in Atty. del Rosarios residence in his

official capacity as the clerk of court of the regional trial court. Hence, when Atty. del

Rosario was appointed judge, he ceased to be the personal custodian of accused

Javellana and the succeeding clerk of court must be deemed the custodian under thesame undertaking.

In our mind, the perceived threats to private respondent Javelanas life no longer exist.

Thus, the trial courts order dated August 8, 1989 giving custody over him to the clerk

of court must be recalled, and he shall be detained at the Provincial Jail of Antique at

San Jose, Antique.
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Regarding his continued practice of law, as a detention prisoner private respondent

Javellana is not allowed to practice his profession as a necessary consequence of his

status as a detention prisoner. The trial courts order was clear that private respondent

"is not to be allowed liberty to roam around but is to be held as a detention prisoner."

The prohibition to practice law referred not only to Criminal Case No. 4262, but to all

other cases as well, except in cases where private respondent would appear in court todefend himself.

As a matter of law, when a person indicted for an offense is arrested, he is deemed

placed under the custody of the law. He is placed in actual restraint of liberty in jail so

that he may be bound to answer for the commission of the offense.[3]He must be

detained in jail during the pendency of the case against him, unless he is authorized by

the court to be released on bail or on recognizance.[4]Let it be stressed that all

prisoners whether under preventive detention or serving final sentence can not

practice their profession nor engage in any business or occupation, or hold office,

elective or appointive, while in detention. This is a necessary consequence of arrest

and detention. Consequently, all the accused in Criminal Cases Nos. 3350-3355 must

be confined in the Provincial Jail of Antique.

Considering that the pendency of Criminal Cases Nos. 3350-3355 has dragged on for

more than ten (10) years, the presiding judge of the Regional Trial Court, Branch 12,

San Jose, Antique, is ordered to continue with the trial of said criminal cases with all

deliberate dispatch and to avoid further delay.

WHEREFORE, the August 8, 1989 order of the trial court is hereby

SETASIDE. All accused in Criminal Cases Nos. 3350-3355, including Avelino T.

Javellana and Arturo F. Pacificador are ordered detained at the Provincial Jail of

Antique, San Jose, Antique, effective immediately, and shall not be allowed to go out

of the jail for any reason or guise, except upon prior written permission of the trial

court for a lawful purpose.

Let copies of this resolution be given to the Provincial Director, PNP Antique

Provincial Police Office, San Jose, Antique and to the Provincial Jail Warden,

Provincial Jail of Antique, San Jose, Antique.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno, Kapunan, andYnares-Santiago,

JJ., concur.2/17/00 9:54 AM
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[A.M. No. P-99-1287. January 26, 2001]

OFFICE OF THE COURT ADMINISTRATOR, complainant, vs. ATTY.

MISAEL M. LADAGA, Branch Clerk of Court, Regional Trial Court,Branch 133, Makati City, respondent.

R E S O L U T I O N

KAPUNAN, J.:

In a Letter, dated August 31, 1998, respondent Atty. Misael M. Ladaga, Branch Clerk ofCourt of the Regional Trial Court of Makati, Branch 133, requested the Court Administrator,

Justice Alfredo L. Benipayo, for authority to appear aspro bonocounsel of his cousin, Narcisa

Naldoza Ladaga, in Criminal Case No. 84885, entitled People vs. Narcisa Naldoza Ladaga for

Falsification of Public Document pending before the Metropolitan Trial Court of Quezon City,

Branch 40.[1]While respondents letter-request was pending action, Lisa Payoyo Andres, theprivate complainant in Criminal Case No. 84885, sent a letter to the Court Administrator, dated

September 2, 1998, requesting for a certification with regard to respondents authority to appearas counsel for the accused in the said criminal case.[2]On September 7, 1998, the Office of the

Court Administrator referred the matter to respondent for comment.[3]

In his Comment,[4]dated September 14, 1998, respondent admitted that he had appeared inCriminal Case No. 84885 without prior authorization. He reasoned out that the factual

circumstances surrounding the criminal case compelled him to handle the defense of his cousin

who did not have enough resources to hire the services of a counsel de parte; while, on the other

hand, private complainant was a member of a powerful family who was out to get even with his

cousin. Furthermore, he rationalized that his appearance in the criminal case did not prejudicehis office nor the interest of the public since he did not take advantage of his position. In any

case, his appearances in court were covered by leave application approved by the presiding

judge.

On December 8, 1998, the Court issued a resolution denying respondents request for

authorization to appear as counsel and directing the Office of the Court Administrator to file

formal charges against him for appearing in court without the required authorization from theCourt.[5]On January 25, 1999, the Court Administrator filed the instant administrative complaint

against respondent for violating Sec. 7(b)(2) of Republic Act No. 6713, otherwise known as the

Code of Conduct and Ethical Standards for Public Officials and Employees, which provides:

Sec. 7. Prohibited Acts and Transactions.In addition to acts and omissions of publicofficials and employees now prescribed in the Constitution and existing laws, the

following shall constitute prohibited acts and transactions of any public official and

employee and are hereby declared to be unlawful:

x x x
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(b) Outside employment and other activities related thereto.- Public officials and employeesduring their incumbency shall not:

x x x

(2) Engage in the private practice of their profession unless authorized by the

Constitution or law, Provided, that such practice will not conflict or tend toconflict with their official functions;

In our Resolution, dated February 9, 1999, we required respondent to comment on the

administrative complaint.

In his Comment, respondent explained that he and Ms. Ladaga are close blood cousins

who belong to a powerless family from the impoverished town of Bacauag, Surigao del

Norte. From childhood until he finished his law degree, Ms. Ladaga had always supported and

guided him while he looked up to her as a mentor and an adviser. Because of their closerelationship, Ms. Ladaga sought respondents help and advice when she was charged in Criminal

Case No. 84885 for falsification by the private complainant, Lisa Payoyo Andres, whose onlypurpose in filing the said criminal case was to seek vengeance on her cousin. He explainedthat his cousins discord with Ms. Andres started when the latters husband, SPO4 Pedro Andres,

left the conjugal home to cohabit with Ms. Ladaga. During the course of their illicit affair, SPO4

Andres and Ms. Ladaga begot three (3) children. The birth certificate of their eldest child is the

subject of the falsification charge against Ms. Ladaga. Respondent stated that since he is theonly lawyer in their family, he felt it to be his duty to accept Ms. Ladagas plea to be her counsel

since she did not have enough funds to pay for the services of a lawyer. Respondent also pointed

out that in his seven (7) years of untainted government service, initially with the Commission onHuman Rights and now with the judiciary, he had performed his duties with honesty and

integrity and that it was only in this particular case that he had been administratively charged for

extending a helping hand to a close relative by giving a free legal assistance for humanitarianpurpose. He never took advantage of his position as branch clerk of court since the questionedappearances were made in the Metropolitan Trial Court of Quezon City and not in Makati where

he is holding office. He stressed that during the hearings of the criminal case, he was on leave as

shown by his approved leave applications attached to his comment.

In our Resolution, dated June 22, 1999, we noted respondents comment and referred the

administrative matter to the Executive Judge of the Regional Trial Court of Makati, Judge

Josefina Guevarra-Salonga, for investigation, report and recommendation.

In her Report, dated September 29, 1999, Judge Salonga made the following findings andrecommendation:

There is no question that Atty. Misael Ladaga appeared as counsel for and in behalf of

his cousin, Narcisa Naldoza Ladaga, an accused in Criminal Case No. 84-885 for

Falsification of Public Documents before the METC of Quezon City. It is also

denied that the appearance of said respondent in said case was without the previous

permission of the Court.


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An examination of the records shows that during the occasions that the respondent

appeared as such counsel before the METC of Quezon City, he was on official leave

of absence. Moreover, his Presiding Judge, Judge Napoleon Inoturan was aware of

the case he was handling. That the respondent appeared aspro bonocounsel likewise

cannot be denied. His cousin-client Narcisa Ladaga herself positively declared that

the respondent did not receive a single centavo from her. Helpless as she was andrespondent being the only lawyer in the family, he agreed to represent her out of his

compassion and high regard for her.

It may not be amiss to point out, this is the first time that respondent ever handled a

case for a member of his family who is like a big sister to him. He appeared for free

and for the purpose of settling the case amicably. Furthermore, his Presiding Judge

was aware of his appearance as counsel for his cousin. On top of this, during all the

years that he has been in government service, he has maintained his integrity and

independence.

RECOMMENDATION

In the light of the foregoing, it appearing that the respondent appeared as counsel for

his cousin without first securing permission from the court, and considering that this is

his first time to do it coupled with the fact that said appearance was not for a fee and

was with the knowledge of his Presiding Judge, it is hereby respectfully recommended

that he be REPRIMANDED with a stern warning that any repetition of such act would

be dealt with more severely.[6]

We agree with the recommendation of the investigating judge.

Respondent is charged under Sec. 7(b)(2) of the Code of Conduct and Ethical Standards for

Public Officials and Employees which prohibits civil servants from engaging in the private

practice of their profession. A similar prohibition is found under Sec. 35, Rule 138 of theRevised Rules of Court which disallows certain attorneys from engaging in the private practice

of their profession. The said section reads:

SEC. 35. Certain attorneys not to practice.- No judge or other official or employee of

the superior courts or of the Office of the Solicitor General, shall engage in private

practice as a member of the bar or give professional advise to clients.

However, it should be clarified that private practice of a profession, specifically the law

profession in this case, which is prohibited, does not pertain to an isolated court appearance;rather, it contemplates a succession of acts of the same nature habitually or customarily holding

ones self to the public as a lawyer.

In the case ofPeople vs. Villanueva,[7]we explained the meaning of the term private

practice prohibited by the said section, to wit:
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We believe that the isolated appearance of City Attorney Fule did not constitute

private practice, within the meaning and contemplation of the Rules. Practice is more

than an isolated appearance, for it consists in frequent or customary action, a

succession of acts of the same kind. In other words, it is frequent habitual exercise

(State vs. Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, N.S. 768) Practice of law to fall

within the prohibition of statute has been interpreted as customarily or habituallyholding ones 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). The appearance as counsel

on one occasion, is not conclusive as determinative of engagement in the private

practice of law. The following observation of the Solicitor General is noteworthy:

Essentially, the word private practice of law implies that one must have

presented himself to be in the active and continued practice of the legal profession

and that his professional services are available to the public for a compensation,

as a source of his livelihood or in consideration of his said services.

For one thing, it has never been refuted that City Attorney Fule had been given

permission by his immediate superior, the Secretary of Justice, to represent the

complainant in the case at bar, who is a relative.[8]

Based on the foregoing, it is evident that the isolated instances when respondent appearedaspro bonocounsel of his cousin in Criminal Case No. 84885 does not constitute the private

practice of the law profession contemplated by law.

Nonetheless, while respondents isolated court appearances did not amount to a private

practice of law, he failed to obtain a written permission therefor from the head of the

Department, which is this Court as required by Section 12, Rule XVIII of the Revised CivilService Rules, thus:

Sec. 12. No officer or employee shall engage directly in anyprivate business,

vocation, or professionor be connected with any commercial, credit, agricultural, or

industrial undertaking without a written permission from the head of the

Department: Provided, That this prohibition will be absolute in the case of those

officers and employees whose duties and responsibilities require that their entire time

be at the disposal of the Government;Provided,further, That if an employee is

granted permission to engage in outside activities, time so devoted outside of office

hours should be fixed by the agency to the end that it will not impair in any way theefficiency of the officer or employee: And provided, finally, That no permission is

necessary in the case of investments, made by an officer or employee, which do not

involve real or apparent conflict between his private interests and public duties, or in

any way influence him in the discharge of his duties, and he shall not take part in the

management of the enterprise or become an officer of the board of directors.[9]
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Respondent entered his appearance and attended court proceedings on numerous

occasions, i.e., May 4-15, 1998, June 18, 1998, July 13, 1998 and August 5, 1998, as borne out

by his own admission. It is true that he filed leave applications corresponding to the dates heappeared in court. However, he failed to obtain a prior permission from the head of the

Department. The presiding judge of the court to which respondent is assigned is not the head of

the Department contemplated by law.WHEREFORE, in view of the foregoing, respondent Atty. Misael M. Ladaga is hereby

REPRIMANDED with a stern warning that any repetition of such act would be dealt with more

severely.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-27654 February 18, 1970

IN THE MATTER OF PROCEEDINGS FOR DISCIPLINARY ACTION AGAINST ATTY. VICENTE

RAUL ALMACEN In L-27654, ANTONIO H. CALERO,

vs.

VIRGINIA Y. YAPTINCHAY.

R E S O L U T I O N

CASTRO, J.:

Before us is Atty. Vicente Raul Almacen's "Petition to Surrender Lawyer's Certificate of Title," filed onSeptember 25, 1967, in protest against what he therein asserts is "a great injustice committedagainst his client by this Supreme Court." He indicts this Court, in his own phrase, as a tribunal"peopled by men who are calloused to our pleas for justice, who ignore without reasons their ownapplicable decisions and commit culpable violations of the Constitution with impunity." His client's hecontinues, who was deeply aggrieved by this Court's "unjust judgment," has become "one of thesacrificial victims before the altar of hypocrisy." In the same breath that he alludes to the classicsymbol of justice, he ridicules the members of this Court, saying "that justice as administered by thepresent members of the Supreme Court is not only blind, but also deaf and dumb." He then vows to


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argue the cause of his client "in the people's forum," so that "the people may know of the silentinjustice's committed by this Court," and that "whatever mistakes, wrongs and injustices that werecommitted must never be repeated." He ends his petition with a prayer that

... a resolution issue ordering the Clerk of Court to receive the certificate of theundersigned attorney and counsellor-at-law IN TRUST with reservation that at any

time in the future and in the event we regain our faith and confidence, we mayretrieve our title to assume the practice of the noblest profession.

He reiterated and disclosed to the press the contents of the aforementioned petition. Thus, onSeptember 26, 1967, the Manila Times published statements attributed to him, as follows:

Vicente Raul Almacen, in an unprecedented petition, said he did it to expose thetribunal's"unconstitutional and obnoxious"practice of arbitrarily denying petitions orappeals without any reason.

Because of the tribunal's "short-cut justice,"Almacen deplored, his client wascondemned to pay P120,000, without knowing why he lost the case.

xxx xxx xxx

There is no use continuing his law practice, Almacen said in this petition, "where ourSupreme Court is composed of men who are calloused to our pleas for justice, whoignore without reason their own applicable decisions and commit culpable violationsof the Constitution with impunity.

xxx xxx xxx

He expressed the hope that by divesting himself of his title by which he earns hisliving, the present members of the Supreme Court "will become responsive to all

cases brought to its attention without discrimination, and will purge itself of thoseunconstitutional and obnoxious "lack of merit" or "denied resolutions. (Emphasissupplied)

Atty. Almacen's statement that

... our own Supreme Court is composed of men who are calloused to our pleas of[sic] justice, who ignore their own applicable decisions and commit culpableviolations of the Constitution with impunity

was quoted by columnist Vicente Albano Pacis in the issue of the Manila Chronicleof September 28,1967. In connection therewith, Pacis commented that Atty. Almacen had "accused the high tribunal

of offenses so serious that the Court must clear itself," and that "his charge is one of theconstitutional bases for impeachment."

The genesis of this unfortunate incident was a civil case entitled Virginia Y. Yaptinchay vs. AntonioH. Calero,1in which Atty. Almacen was counsel for the defendant. The trial court, after due hearing,rendered judgment against his client. On June 15, 1966 Atty. Almacen received a copy of thedecision. Twenty days later, or on July 5, 1966, he moved for its reconsideration. He served on theadverse counsel a copy of the motion, but did not notify the latter of the time and place of hearing onsaid motion. Meanwhile, on July 18, 1966, the plaintiff moved for execution of the judgment. For


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"lack of proof of service," the trial court denied both motions. To prove that he did serve on theadverse party a copy of his first motion for reconsideration, Atty. Almacen filed on August 17, 1966 asecond motion for reconsideration to which he attached the required registry return card. Thissecond motion for reconsideration, however, was ordered withdrawn by the trial court on August 30,1966, upon verbal motion of Atty. Almacen himself, who, earlier, that is, on August 22, 1966, hadalready perfected the appeal. Because the plaintiff interposed no objection to the record on appeal

and appeal bond, the trial court elevated the case to the Court of Appeals.

But the Court of Appeals, on the authority of this Court's decision in Manila Surety & Fidelity Co., Inc.vs. Batu Construction & Co.,L-16636, June 24, 1965, dismissed the appeal, in the following words:

Upon consideration of the motion dated March 27, 1967, filed by plaintiff-appelleepraying that the appeal be dismissed, and of the opposition thereto filed bydefendant-appellant; the Court RESOLVED TO DISMISS, as it hereby dismisses, theappeal, for the reason that the motion for reconsideration dated July 5, 1966 (pp. 90-113, printed record on appeal) does not contain a notice of time and place of hearingthereof and is, therefore, a useless piece of paper (Manila Surety & Fidelity Co., Inc.vs. Batu Construction & Co., G.R. No. L-16636, June 24, 1965), which did notinterrupt the running of the period to appeal, and, consequently, the appeal wasperfected out of time.

Atty. Almacen moved to reconsider this resolution, urging that Manila Surety & Fidelity Co. is notdecisive. At the same time he filed a pleading entitled "Latest decision of the Supreme Court inSupport of Motion for Reconsideration," citing Republic of the Philippines vs. Gregorio A.Venturanza, L-20417, decided by this Court on May 30, 1966, as the applicable case. Again, theCourt of Appeals denied the motion for reconsideration, thus:

Before this Court for resolution are the motion dated May 9, 1967 and thesupplement thereto of the same date filed by defendant- appellant, praying forreconsideration of the resolution of May 8, 1967, dismissing the appeal.

Appellant contends that there are some important distinctions between this case andthat of Manila Surety and Fidelity Co., Inc. vs. Batu Construction & Co.,G.R. No. L-16636, June 24, 1965, relied upon by this Court in its resolution of May 8, 1967.

Appellant further states that in the latest case,Republic vs. Venturanza, L-20417,May 30, 1966, decided by the Supreme Court concerning the question raised byappellant's motion, the ruling is contrary to the doctrine laid down in the ManilaSurety & Fidelity Co., Inc. case.

There is no substantial distinction between this case and that of Manila Surety &Fidelity Co.

In the case of Republic vs. Venturanza, the resolution denying the motion to dismiss

the appeal, based on grounds similar to those raised herein was issued onNovember 26, 1962, which was much earlier than the date of promulgation of thedecision in the Manila Surety Case, which was June 24, 1965. Further, the resolutionin the Venturanza case was interlocutory and the Supreme Court issued it "withoutprejudice to appellee's restoring the point in the brief." In the main decision in saidcase (Rep. vs. Venturanza the Supreme Court passed upon the issue sub silenciopresumably because of its prior decisions contrary to the resolution of November 26,1962, one of which is that in the Manila Surety and Fidelity case. ThereforeRepublicvs. Venturanzais no authority on the matter in issue.


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Atty. Almacen then appealed to this Court by certiorari. We refused to take the case, and by minuteresolution denied the appeal. Denied shortly thereafter was his motion for reconsideration as well ashis petition for leave to file a second motion for reconsideration and for extension of time. Entry of

judgment was made on September 8, 1967. Hence, the second motion for reconsideration filed byhim after the Said date was ordered expunged from the records.

It was at this juncture that Atty. Almacen gave vent to his disappointment by filing his "Petition toSurrender Lawyer's Certificate of Title," already adverted to a pleading that is interspersed frombeginning to end with the insolent contemptuous, grossly disrespectful and derogatory remarkshereinbefore reproduced, against this Court as well as its individual members, a behavior that is asunprecedented as it is unprofessional.

Nonetheless we decided by resolution dated September 28, 1967 to withhold action on his petitionuntil he shall have actually surrendered his certificate. Patiently, we waited for him to make good hisproffer. No word came from him. So he was reminded to turn over his certificate, which he hadearlier vociferously offered to surrender, so that this Court could act on his petition. To said reminderhe manifested "that he has no pending petition in connection with Case G.R. No. L-27654, Calerovs. Yaptinchay, said case is now final and executory;" that this Court's September 28, 1967resolution did not require him to do either a positive or negative act; and that since his offer was notaccepted, he "chose to pursue the negative act."

In the exercise of its inherent power to discipline a member of the bar for contumely and grossmisconduct, this Court on November 17, 1967 resolved to require Atty. Almacen to show cause "whyno disciplinary action should be taken against him." Denying the charges contained in the November17 resolution, he asked for permission "to give reasons and cause why no disciplinary action shouldbe taken against him ... in an open and public hearing." This Court resolved (on December 7) "torequire Atty. Almacen to state, within five days from notice hereof, his reasons for such request,otherwise, oral argument shall be deemed waived and incident submitted for decision." To thisresolution he manifested that since this Court is "the complainant, prosecutor and Judge," hepreferred to be heard and to answer questions "in person and in an open and public hearing" so thatthis Court could observe his sincerity and candor. He also asked for leave to file a written

explanation "in the event this Court has no time to hear him in person." To give him the ampliestlatitude for his defense, he was allowed to file a written explanation and thereafter was heard in oralargument.

His written answer, as undignified and cynical as it is unchastened, offers -no apology. Far frombeing contrite Atty. Almacen unremittingly repeats his jeremiad of lamentations, this timeembellishing it with abundant sarcasm and innuendo. Thus:

At the start, let me quote passages from the Holy Bible, Chapter 7, St. Matthew:

"Do not judge, that you may not be judged. For with what judgmentyou judge, you shall be judged, and with what measure you measure,

it shall be measured to you. But why dost thou see the speck in thybrother's eye, and yet dost not consider the beam in thy own eye? Orhow can thou say to thy brother, "Let me cast out the speck from thyeye"; and behold, there is a beam in thy own eye? Thou hypocrite,first cast out the beam from thy own eye, and then thou wilt seeclearly to cast out the speck from thy brother's eyes."

"Therefore all that you wish men to do to you, even to do you also tothem: for this is the Law and the Prophets."


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Your respondent has no intention of disavowing the statements mentioned in hispetition. On the contrary, he refirms the truth of what he stated, compatible with hislawyer's oath that he will do no falsehood, nor consent to the doing of any in court.But he vigorously DENY under oath that the underscored statements contained in

the CHARGE are insolent, contemptuous, grossly disrespectful and derogatory to theindividual members of the Court; that they tend to bring the entire Court, without

justification, into disrepute; and constitute conduct unbecoming of a member of thenoble profession of law.

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Respondent stands four-square that his statement is borne by TRUTH and has beenasserted with NO MALICE BEFORE AND AFTER THOUGHT but mainly motivatedwith the highest interest of justice that in the particular case of our client, themembers have shown callousness to our various pleas for JUSTICE, our pleadingswill bear us on this matter, ...

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To all these beggings, supplications, words of humility, appeals for charity,generosity, fairness, understanding, sympathy and above all in the highest interest ofJUSTICE, what did we get from this COURT? One word, DENIED, with all itshardiness and insensibility. That was the unfeeling of the Court towards our pleasand prayers, in simple word, it is plain callousness towards our particular case.

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Now that your respondent has the guts to tell the members of the Court that

notwithstanding the violation of the Constitution, you remained unpunished, thisCourt in the reverse order of natural things, is now in the attempt to inflict punishmenton your respondent for acts he said in good faith.

Did His Honors care to listen to our pleadings and supplications for JUSTICE,CHARITY, GENEROSITY and FAIRNESS? Did His Honors attempt to justify theirstubborn denial with any semblance of reason, NEVER. Now that your respondent isgiven the opportunity to face you, he reiterates the same statement with emphasis,DID YOU? Sir. Is this. the way of life in the Philippines today, that even our ownPresident, said: "the story is current, though nebulous ,is to its truth, it is still beingcirculated that justice in the Philippines today is not what it is used to be before thewar. There are those who have told me frankly and brutally that justice is acommodity, a marketable commodity in the Philippines."

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We condemn the SIN, not the SINNER. We detest the ACTS, not the ACTOR. Weattack the decision of this Court, not the members. ... We were provoked. We werecompelled by force of necessity. We were angry but we waited for the finality of thedecision. We waited until this Court has performed its duties. We never interfered norobstruct in the performance of their duties. But in the end, after seeing that theConstitution has placed finality on your judgment against our client and sensing that


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you have not performed your duties with "circumspection, carefulness, confidenceand wisdom", your Respondent rise to claim his God given right to speak the truthand his Constitutional right of free speech.

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The INJUSTICES which we have attributed to this Court and the further violations wesought to be prevented is impliedly shared by our President. ... .

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What has been abhored and condemned, are the very things that were applied to us. RecallingMadam Roland's famous apostrophe during the French revolution, "O Liberty, what crimes arecommitted in thy name", we may dare say, "O JUSTICE, what technicalities are committed in thyname' or more appropriately, 'O JUSTICE, what injustices are committed in thy name."

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We must admit that this Court is not free from commission of any abuses, but whowould correct such abuses considering that yours is a court of last resort. A strongpublic opinion must be generated so as to curtail these abuses.

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The phrase, Justice is blindis symbolize in paintings that can be found in all courtsand government offices. We have added only two more symbols, that it is also deafand dumb. Deaf in the sense that no members of this Court has ever heard our criesfor charity, generosity, fairness, understanding sympathy and for justice; dumb in thesense, that inspite of our beggings, supplications, and pleadings to give us reasonswhy our appeal has been DENIED, not one word was spoken or given ... We refer to

no human defect or ailment in the above statement. We only describe the.impersonal state of things and nothing more.

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As we have stated, we have lost our faith and confidence in the members of thisCourt and for which reason we offered to surrender our lawyer's certificate, INTRUST ONLY. Because what has been lost today may be regained tomorrow. As theoffer was intended as our self-imposed sacrifice, then we alone may decide as towhen we must end our self-sacrifice. If we have to choose between forcing ourselvesto have faith and confidence in the members of the Court but disregard ourConstitution and to uphold the Constitution and be condemned by the members ofthis Court, there is no choice, we must uphold the latter.

But overlooking, for the nonce, the vituperative chaff which he claims is not intended as a studieddisrespect to this Court, let us examine the grain of his grievances.

He chafes at the minute resolution denial of his petition for review. We are quite aware of thecriticisms2expressed against this Court's practice of rejecting petitions by minute resolutions. Wehave been asked to do away with it, to state the facts and the law, and to spell out the reasons fordenial. We have given this suggestion very careful thought. For we know the abject frustration of a


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lawyer who tediously collates the facts and for many weary hours meticulously marshalls hisarguments, only to have his efforts rebuffed with a terse unadorned denial. Truth to tell, however,most petitions rejected by this Court are utterly frivolous and ought never to have been lodged atall.3The rest do exhibit a first-impression cogency, but fail to, withstand critical scrutiny. By and large,this Court has been generous in giving due course to petitions for certiorari.

Be this as it may, were we to accept every case or write a full opinion for every petition we reject, wewould be unable to carry out effectively the burden placed upon us by the Constitution. The properrole of the Supreme Court, as Mr. Chief Justice Vinson of the U.S. Supreme Court has defined it, isto decide "only those cases which present questions whose resolutions will have immediateimportance beyond the particular facts and parties involved." Pertinent here is the observation of Mr.Justice Frankfurter in Maryland vs. Baltimore Radio Show, 94 L. ed 562, 566:

A variety of considerations underlie denials of the writ, and as to the same petitiondifferent reasons may read different justices to the same result ... .

Since there are these conflicting, and, to the uninformed, even confusing reasons fordenying petitions for certiorari, it has been suggested from time to time that the Court

indicate its reasons for denial. Practical considerations preclude. In order that theCourt may be enabled to discharge its indispensable duties, Congress has placedthe control of the Court's business, in effect, within the Court's discretion. During thelast three terms the Court disposed of 260, 217, 224 cases, respectively, on theirmerits. For the same three terms the Court denied, respectively, 1,260, 1,105,1,189petitions calling for discretionary review. If the Court is to do its work it would not befeasible to give reasons, however brief, for refusing to take these cases. The tunethat would be required is prohibitive. Apart from the fact that as already indicateddifferent reasons not infrequently move different members of the Court in concludingthat a particular case at a particular time makes review undesirable.

Six years ago, in Novino, et al., vs. Court of Appeals, et al.,1,21098, May 31, 1963 (60 O.G. 8099),this Court, through the then Chief Justice Cesar Bengzon, articulated its considered view on this

matter. There, the petitioners counsel urged that a "lack of merit" resolution violates Section 12 ofArticle VIII of the Constitution. Said Chief Justice Bengzon:

In connection with identical short resolutions, the same question has been raisedbefore; and we held that these "resolutions" are not "decisions" within the aboveconstitutional requirement. They merely hold that the petition for review should not beentertained in view of the provisions of Rule 46 of the Rules of Court; and evenordinary lawyers have all this time so understood it. It should be remembered that apetition to review the decision of the Court of Appeals is not a matter of right, but ofsound judicial discretion; and so there is no need to fully explain the court's denial.For one thing, the facts and the law are already mentioned in the Court of Appeals'opinion.

By the way, this mode of disposal has as intended helped the Court inalleviating its heavy dock