Cayetano V Monsod
Cayetano V Monsod
235 performs any act or acts either in court or outside of court for that purpose, is engaged in the
CAYETANO VS MONSOD practice of law." (State ex. rel. Mckittrick v. C.S. Dudley and Co., 102 S.W. 2d 895, 340 Mo. 852)
PARAS, J.: This Court in the case of Philippine Lawyers Association v. Agrava, (105 Phil. 173, 176-177) stated:
We are faced here with a controversy of far-reaching proportions. While ostensibly only legal "The practice of law is not limited to the conduct of cases or litigation in court; it embraces the
issues are involved, the Court's decision in this case would indubitably have a profound effect on preparation of pleadings and other papers incident to actions and special proceedings, the
the political aspect of our national existence. management of such actions and proceedings on behalf of clients before judges and courts, and in
addition, conveying. In general, all advice to clients, and all action taken for them in
The 1987 Constitution provides in Section 1 (1), Article IX-C: matters connected with the law incorporation services, assessment and condemnation services
contemplating an appearance before a judicial body, the foreclosure of a mortgage, enforcement of
"There shall be a Commission on Elections composed of a Chairman and six Commissioners who a creditor's claim in bankruptcy and insolvency proceedings, and conducting proceedings in
shall be natural-born citizens of the Philippines and, at the time of their appointment, at least attachment, and in matters of estate and guardianship have been held to constitute law practice, as
thirty-five years of age, holders of a college degree, and must not have been candidates for any do the preparation and drafting of legal instruments, where the work done involves the determination
elective position in the immediately preceding elections. However, a majority thereof, including by the trained legal mind of the legal effect of facts and conditions." (5 Am. Jr. p. 262, 263). (Italics
the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law supplied)
for at least ten years." (Italics supplied)
"Practice of law under modern conditions consists in no small part of work performed outside of
The aforequoted provision is patterned after Section 1(1), Article XII-C of the 1973 Constitution any court and having no immediate relation to proceedings in court. It embraces conveyancing,
which similarly provides: the giving of legal advice on a large variety of subjects, and the preparation and execution of legal
instruments covering an extensive field of business and trust relations and other affairs. Although
"There shall be an independent Commission on Elections composed of a Chairman and eight these transactions may have no direct connection with court proceedings, they are always subject to become
Commissioners who shall be natural-born citizens of the Philippines and, at the time of their involved in litigation. They require in many aspects a high degree of legal skill, a wide experience
appointment, at least thirty-five years of age and holders of a college degree. However, a majority with men and affairs, and great capacity for adaptation to difficult and complex situations. These
thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in customary functions of an attorney or counselor at law bear an intimate relation to the
the practice of law for at least ten years." (Italics supplied) administration of justice by the courts. No valid distinction, so far as concerns the question set
forth in the order, can be drawn between that part of the work of the lawyer which involves
Regrettably, however, there seems to be no jurisprudence as to what constitutes practice of law as appearance in court and that part which involves advice and drafting of instruments in his
a legal qualification to an appointive office. office. It is of importance to the welfare of the public that these manifold customary functions be
performed by persons possessed of adequate learning and skill, of sound moral character, and
Black defines "practice of law" as: acting at all times under the heavy trust obligations to clients which rests upon all attorneys."
(Moran, Comments on the Rules of Court, Vol. 3 [1953 ed.], p. 665-666, citing In re Opinion of the
"The rendition of services requiring the knowledge and the application of legal principles and Justices [Mass.], 194 N. E. 313, quoted in Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 179 A.
technique to serve the interest of another with his consent. It is not limited to appearing in court, 139, 144]). (Italics ours)
or advising and assisting in the conduct of litigation, but embraces the preparation of pleadings,
and other papers incident to actions and special proceedings, conveyancing, the preparation of The University of the Philippines Law Center in conducting orientation briefing for new lawyers
legal instruments of all kinds, and the giving of all legal advice to clients. It embraces all advice to (1974-1975) listed the dimensions of the practice of law in even broader terms as advocacy,
clients and all actions taken for them in matters connected with the law. An attorney engages in counseling and public service.
the practice of law by maintaining an office where he is held out to be an attorney, using a
letterhead describing himself as an attorney, counseling clients in legal matters, negotiating with "One may be a practicing attorney in following any line of employment in the profession. If what
opposing counsel about pending litigation, and fixing and collecting fees for services rendered by he does exacts knowledge of the law and is of a kind usual for attorneys engaging in the active
his associate." (Black's Law Dictionary, 3rd ed.) practice of their profession, and he follows some one or more lines of employment such as this he
is a practicing attorney at law within the meaning of the statute.'" (Barr v. Cardell, 155 NW 312)
The practice of law is not limited to the conduct of cases in court. (Land Title Abstract and Trust Co.
v. Dworken, 129 Ohio St. 23, 193 N. E. 650) A person is also considered to be in the practice of law Practice of law means any activity, in or out of court, which requires the application of law, legal
when he: procedure, knowledge, training and experience. "To engage in the practice of law is to perform
those acts which are characteristics of the profession. Generally, to practice law is to give notice or
"x x x for valuable consideration engages in the business of advising person, firms, associations or render any kind of service, which device or service requires the use in any degree of legal
corporations as to their rights under the law, or appears in a representative capacity as an advocate knowledge or skill." (111 ALR 23)
in proceedings pending or prospective, before any court, commissioner, referee, board, body,
committee, or commission constituted by law or authorized to settle controversies and there, in The following records of the 1986 Constitutional Commission show that it has adopted a liberal
such representative capacity performs any act or acts for the purpose of obtaining or defending the interpretation of the term "practice of law."
rights of their clients under the law. Otherwise stated, one who, in a representative capacity,
engages in the business of advising clients as to their rights under the law, or while so engaged "MR. FOZ. Before we suspend the session, may I make a manifestation which I forgot to do during
our review of the provisions on the Commission on Audit. May I be allowed to make a very brief
1
statement? called "firms." The firm is usually a partnership and members of the firm are the partners. Some
firms may be organized as professional corporations and the members called shareholders. In
"THE PRESIDING OFFICER (Mr. Jamir). The Commissioner will please proceed. either case, the members of the firm are the experienced attorneys. In most firms, there are
younger or more inexperienced salaried attorneys called "associates." (Ibid.).
"MR. FOZ. This has to do with the qualifications of the members of the Commission on Audit. Among
others, the qualifications provided for by Section 1 is that 'They must be Members of the Philippine Bar' - I The test that defines law practice by looking to traditional areas of law practice is essentially
am quoting from the provision 'who have been engaged in the practice of law for at least ten years.'" tautologous, unhelpfully defining the practice of law as that which lawyers do. (Charles W.
Wolfram, Modern Legal Ethics [West Publishing Co.: Minnesota, 1986], p. 593). The practice of law
"To avoid any misunderstanding which would result in excluding members of the Bar who are is defined as "the performance of any acts . . . in or out of court, commonly understood to be the
now employed in the COA or Commission on Audit, we would like to make the clarification that this practice of law. (State Bar Ass'n v. Connecticut Bank & Trust Co., 145 Conn. 222, 140 A.2d 863, 870
provision on qualifications regarding members of the Bar does not necessarily refer or involve actual practice [1958] [quoting Grievance Comm. v. Payne, 128 Conn. 325, 22 A.2d 623, 626 [1941]). Because lawyers
of law outside the COA. We have to interpret this to mean that as long as the lawyers who are employed in perform almost every function known in the commercial and governmental realm, such a
the COA are using their legal knowledge or legal talent in their respective work within COA, then they are definition would obviously be too global to be workable. (Wolfram, op. cit.).
qualified to be considered for appointment as members or commissioners, even chairman, of the Commission
on Audit. The appearance of a lawyer in litigation in behalf of a client is at once the most publicly familiar
role for lawyers as well as an uncommon role for the average lawyer. Most lawyers spend little
"This has been discussed by the Committee on Constitutional Commissions and Agencies and we time in courtrooms, and a large percentage spend their entire practice without litigating a
deem it important to take it up on the floor so that this interpretation may be made available case. (Ibid., p. 593). Nonetheless, many lawyers do continue to litigate and the litigating lawyer's
whenever this provision on the qualifications as regards members of the Philippine Bar engaging role colors much of both the public image and the self-perception of the legal profession. (Ibid.).
in the practice of law for at least ten years is taken up.
In this regard thus, the dominance of litigation in the public mind reflects history, not
"MR. OPLE. Will Commissioner Foz yield to just one question. reality. (Ibid.). Why is this so? Recall that the late Alexander SyCip, a corporate lawyer, once
articulated on the importance of a lawyer as a business counselor in this wise: "Even today, there
"MR. FOZ. Yes, Mr. Presiding Officer. are still uninformed laymen whose concept of an attorney is one who principally tries cases before
the courts. The members of the bench and bar and the informed laymen such as businessmen,
"MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is equivalent to the requirement of know that in most developed societies today, substantially more legal work is transacted in law
a law practice that is set forth in the Article on the Commission on Audit? offices than in the courtrooms. General practitioners of law who do both litigation and non-
litigation work also know that in most cases they find themselves spending more time doing what
"MR. FOZ. We must consider the fact that the work of COA, although it is auditing, will necessarily [is] loosely describe[d] as business counseling than in trying cases. The business lawyer has been
involve legal work: it will involve legal work. And, therefore, lawyers who are employed in COA now would described as the planner, the diagnostician and the trial lawyer, the surgeon. I[t] need not [be]
have the necessary qualifications in accordance with the provision on qualifications under our provisions on stress[ed] that in law, as in medicine, surgery should be avoided where internal medicine can be
the Commission on Audit. And, therefore, the answer is yes. effective." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).
"MR. OPLE. Yes. So that the construction given to this is that this is equivalent to the practice of In the course of a working day the average general practitioner will engage in a number of legal
law. tasks, each involving different legal doctrines, legal skills, legal processes, legal institutions, clients,
and other interested parties. Even the increasing numbers of lawyers in specialized practice will
"MR. FOZ. Yes, Mr. Presiding Officer. usually perform at least some legal services outside their specialty. And even within a narrow
specialty such as tax practice, a lawyer will shift from one legal task or role such as advice-giving
"Mr. OPLE, Thank you." to an importantly different one such as representing a client before an administrative
agency. (Wolfram, supra, p. 687).
x x x (Italics supplied)
By no means will most of this work involve litigation, unless the lawyer is one of the relatively rare
Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that the Chairman and types a litigator who specializes in this work to the exclusion of much else. Instead, the work will
two Commissioners of the Commission on Audit (COA) should either be certified public require the lawyer to have mastered the full range of traditional lawyer skills of client counseling,
accountants with not less than ten years of auditing practice, or members of the Philippine Bar advice-giving, document drafting, and negotiation. And increasingly lawyers find that the new
who have been engaged in the practice of law for at least ten years. (Italics supplied) skills of evaluation and mediation are both effective for many clients and a source of
employment. (Ibid.).
Corollary to this is the term "private practitioner" and which is in many ways synonymous with
the word "lawyer." Today, although many lawyers do not engage in private practice, it is still a fact Most lawyers will engage in non-litigation legal work or in litigation work that is constrained in
that the majority of lawyers are private practitioners. (Gary Munneke,Opportunities in Law very important ways, at least theoretically, so as to remove from it some of the salient features of
Careers [VGM Career Horizons: Illinois), 1986], p. 15]). adversarial litigation. Of these special roles, the most prominent is that of prosecutor. In some
lawyers' work the constraints are imposed both by the nature of the client and by the way in which
At this point, it might be helpful to define private practice. The term, as commonly understood, the lawyer is organized into a social unit to perform that work. The most common of these roles
means "an individual or organization engaged in the business of delivering legal services." are those of corporate practice and government legal service. (Ibid.).
(Ibid.). Lawyers who practice alone are often called "sole practitioners." Groups of lawyers are
2
In several issues of the Business Star, a business daily, hereinbelow quoted are emerging trends in and other adjudicatory agencies (including the Securities and Exchange Commission), and in other
corporate law practice, a departure from the traditional concept of practice of law. capacities which require an ability to deal with the law.
We are experiencing today what truly may be called a revolutionary transformation in corporate At any rate, a corporate lawyer may assume responsibilities other than the legal affairs of the
law practice. Lawyers and other professional groups, in particular those members participating in business of the corporation he is representing. These include such matters as determining policy and
various legal-policy decisional contexts, are finding that understanding the major emerging trends becoming involved in management. (Italics supplied)
in corporation law is indispensable to intelligent decision-making.
In a big company, for example, one may have a feeling of being isolated from the action, or not
Constructive adjustment to major corporate problems of today requires an accurate understanding understanding how one's work actually fits into the work of the organization. This can be
of the nature and implications of the corporate law research function accompanied by an frustrating to someone who needs to see the results of his work first hand. In short, a corporate
accelerating rate of information accumulation. The recognition of the need for such improved lawyer is sometimes offered this fortune to be more closely involved in the running of the
corporate legal policy formulation, particularly "model-making" and "contingency planning," has business.
impressed upon us the inadequacy of traditional procedures in many decisional contexts.
Moreover, a corporate lawyer's services may sometimes be engaged by a multinational corporation
In a complex legal problem the mass of information to be processed, the sorting and weighing of (MNC). Some large MNCs provide one of the few opportunities available to corporate lawyers to
significant conditional factors, the appraisal of major trends, the necessity of estimating the enter the international law field. After all, international law is practiced in a relatively small
consequences of given courses of action, and the need for fast decision and response in situations number of companies and law firms. Because working in a foreign country is perceived by many
of acute danger have prompted the use of sophisticated concepts of information flow theory, as glamorous, this is an area coveted by corporate lawyers. In most cases, however, the overseas
operational analysis, automatic data processing, and electronic computing jobs go to experienced attorneys while the younger attorneys do their "international practice" in
equipment. Understandably, an improved decisional structure must stress the predictive law libraries. (Business Star, "Corporate Law Practice," May 25, 1990, p. 4).
component of the policy-making process, wherein a "model", of the decisional context or a segment
thereof is developed to test projected alternative courses of action in terms of futuristic effects This brings us to the inevitable, i.e., the role of the lawyer in the realm of finance. To borrow the
flowing therefrom. lines of Harvard-educated lawyer Bruce Wassertein, to wit: "A bad lawyer is one who fails to spot
problems, a good lawyer is one who perceives the difficulties, and the excellent lawyer is one who
Although members of the legal profession are regularly engaged in predicting and projecting the surmounts them." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4)
trends of the law, the subject of corporate finance law has received relatively little organized and
formalized attention in the philosophy of advancing corporate legal education. Nonetheless, a Today, the study of corporate law practice direly needs a "shot in the arm," so to speak. No longer
cross-disciplinary approach to legal research has become a vital necessity. are we talking of the traditional law teaching method of confining the subject study to the
Corporation Code and the Securities Code but an incursion as well into the intertwining modern
Certainly, the general orientation for productive contributions by those trained primarily in the management issues.
law can be improved through an early introduction to multi-variable decisional contexts and the
various approaches for handling such problems. Lawyers, particularly with either a master's or Such corporate legal management issues deal primarily with three (3) types of learning: (1)
doctorate degree in business administration or management, functioning at the legal-policy level acquisition of insights into current advances which are of particular significance to the corporate
of decision-making now have some appreciation for the concepts and analytical techniques of counsel; (2) an introduction to usable disciplinary skills applicable to a corporate counsel's
other professions which are currently engaged in similar types of complex decision-making. management responsibilities; and (3) a devotion to the organization and management of the legal
function itself.
Truth to tell, many situations involving corporate finance problems would require the services of
an astute attorney because of the complex legal implications that arise from each and every These three subject areas may be thought of as intersecting circles, with a shared area linking
necessary step in securing and maintaining the business issue raised. (Business Star, "Corporate them. Otherwise known as "intersecting managerial jurisprudence," it forms a unifying theme for
Finance Law," Jan. 11, 1989, p. 4). the corporate counsel's total learning.
In our litigation-prone country, a corporate lawyer is assiduously referred to as the "abogado de Some current advances in behavior and policy sciences affect the counsel's role. For that matter,
campanilla." He is the "big-time" lawyer, earning big money and with a clientele composed of the the corporate lawyer reviews the globalization process, including the resulting strategic
tycoons and magnates of business and industry. repositioning that the firms he provides counsel for are required to make, and the need to think
about a corporation's strategy at multiple levels. The salience of the nation-state is being reduced
Despite the growing number of corporate lawyers, many people could not explain what it is that a as firms deal both with global multinational entities and simultaneously with sub-national
corporate lawyer does. For one, the number of attorneys employed by a single corporation will governmental units. Firms increasingly collaborate not only with public entities but with each
vary with the size and type of the corporation. Many smaller and some large corporations farm other often with those who are competitors in other arenas.
out all their legal problems to private law firms. Many others have in-house counsel only for
certain matters. Other corporations have a staff large enough to handle most legal problems in- Also, the nature of the lawyer's participation in decision-making within the corporation is rapidly
house. changing. The modern corporate lawyer has gained a new role as a stakeholder in some cases participating
in the organization and operations of governance through participation on boards and other decision-making
A corporate lawyer, for all intents and purposes, is a lawyer who handles the legal affairs of a roles. Often these new patterns develop alongside existing legal institutions and laws are
corporation. His areas of concern or jurisdiction may include, inter alia: corporate legal research, perceived as barriers. These trends are complicated as corporations organize for global operations.
tax laws research, acting out as corporate secretary (in board meetings), appearances in both courts (Italics supplied)
3
the last decade as one of the most vibrant subsets of the legal profession. The corporate counsel
The practicing lawyer of today is familiar as well with governmental policies toward the promotion and bear responsibility for key aspects of the firm's strategic issues, including structuring its global
management of technology. New collaborative arrangements for promoting specific technologies or operations, managing improved relationships with an increasingly diversified body of employees,
competitiveness more generally require approaches from industry that differ from older, more adversarial managing expanded liability exposure, creating new and varied interactions with public decision-
relationships and traditional forms of seeking to influence governmental policies. And there are lessons to makers, coping internally with more complex make or by decisions.
be learned from other countries. In Europe, Esprit, Eureka and Race are examples of collaborative
efforts between governmental and business Japan's MITI is world famous. (Italics supplied) This whole exercise drives home the thesis that knowing corporate law is not enough to make one
a good general corporate counsel nor to give him a full sense of how the legal system shapes
Following the concept of boundary spanning, the office of the Corporate Counsel comprises a corporate activities. And even if the corporate lawyer's aim is not to understand all of the law's
distinct group within the managerial structure of all kinds of organizations. Effectiveness of both effects on corporate activities, he must, at the very least, also gain a working knowledge of the
long-term and temporary groups within organizations has been found to be related to management issues if only to be able to grasp not only the basic legal "constitution" or make-up of
indentifiable factors in the group-context interaction such as the groups actively revising their the modern corporation. (Business Star, "The Corporate Counsel," April 10, 1991, p. 4)..
knowledge of the environment, coordinating work with outsiders, promoting team achievements
within the organization. In general, such external activities are better predictors of team The challenge for lawyers (both of the bar and the bench) is to have more than a passing
performance than internal group processes. knowledge of financial law affecting each aspect of their work. Yet, many would admit to
ignorance of vast tracts of the financial law territory. What transpires next is a dilemma of
In a crisis situation, the legal managerial capabilities of the corporate lawyer vis-a-vis the managerial mettle professional security: Will the lawyer admit ignorance and risk opprobrium?; or will he feign
of corporations are challenged. Current research is seeking ways both to anticipate effective understanding and risk exposure? (Business Star, "Corporate Finance law," Jan. 11, 1989, p. 4).
managerial procedures and to understand relationships of financial liability and insurance
considerations. (Underscoring supplied) Respondent Christian Monsod was nominated by President Corazon C. Aquino to the position of
Chairman of the COMELEC in a letter received by the Secretariat of the Commission on
Regarding the skills to apply by the corporate counsel, three factors are apropos: Appointments on April 25, 1991. Petitioner opposed the nomination because allegedly Monsod
does not possess the required qualification of having been engaged in the practice of law for at
First System Dynamics. The field of systems dynamics has been found an effective tool for new least ten years.
managerial thinking regarding both planning and pressing immediate problems. An
understanding of the role of feedback loops, inventory levels, and rates of flow, enable users to On June 5, 1991, the Commission on Appointments confirmed the nomination of Monsod as
simulate all sorts of systematic problems physical, economic, managerial, social, and Chairman of the COMELEC. On June 18, 1991, he took his oath of office. On the same day, he
psychological. New programming techniques now make the systems dynamics principles more accessible assumed office as Chairman of the COMELEC.
to managers including corporate counsels. (Italics supplied)
Challenging the validity of the confirmation by the Commission on Appointments of Monsod's
Second Decision Analysis. This enables users to make better decisions involving complexity and nomination, petitioner as a citizen and taxpayer, filed the instant petition for Certiorari and
uncertainty. In the context of a law department, it can be used to appraise the settlement value of litigation, Prohibition praying that said confirmation and the consequent appointment of Monsod as
aid in negotiation settlement, and minimize the cost and risk involved in managing a portfolio of Chairman of the Commission on Elections be declared null and void.
cases. (Italics supplied)
Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar examinations of
Third Modeling for Negotiation Management. Computer-based models can be used directly by parties 1960 with a grade of 86.55%. He has been a dues paying member of the Integrated Bar of the
and mediators in all kinds of negotiations. All integrated set of such tools provide coherent and Philippines since its inception in 1972-73. He has also been paying his professional license fees as a
effective negotiation support, including hands-on on instruction in these techniques. A simulation lawyer for more than ten years. (p. 124, Rollo)
case of an international joint venture may be used to illustrate the point.
After graduating from the College of Law (U.P.) and having hurdled the bar, Atty. Monsod worked
[Be this as it may,] the organization and management of the legal function, concern three pointed in the law office of his father. During his stint in the World Bank Group (1963-1970), Monsod worked as
areas of consideration, thus: an operations officer for about two years in Costa Rica and Panama, which involved getting acquainted with
the laws of member-countries, negotiating loans and coordinating legal, economic, and project work of the
Preventive Lawyering. Planning by lawyers requires special skills that comprise a major part of the Bank. Upon returning to the Philippines in 1970, he worked with the Meralco Group, served as chief
general counsel's responsibilities. They differ from those of remedial law. Preventive lawyering is executive officer of an investment bank and subsequently of a business conglomerate, and since 1986, has
concerned with minimizing the risks of legal trouble and maximizing legal rights for such legal rendered services to various companies as a legal and economic consultant or chief executive officer. As
entities at that time when transactional or similar facts are being considered and made. former Secretary-General (1986) and National Chairman (1987) of NAMFREL, Monsod's, work involved
being knowledgeable in election law. He appeared for NAMFREL in its accredition hearings before the
Managerial Jurisprudence. This is the framework within which are undertaken those activities of the Comelec. In the field of advocacy, Monsod, in his personal capacity and as former Co-Chairman of the
firm to which legal consequences attach. It needs to be directly supportive of this nation's evolving Bishops Businessmen's Conference for Human Development, has worked with the under privileged sectors,
economic and organizational fabric as firms change to stay competitive in a global, interdependent such as the farmer and urban poor groups, in initiating, lobbying for and engaging in affirmative action for
environment. The practice and theory of "law" is not adequate today to facilitate the relationships the agrarian reform law and lately the urban land reform bill. Monsod also made use of his legal knowledge
needed in trying to make a global economy work. as a member of the Davide Commission, a guasi-judicial body, which conducted numerous hearings (1990)
and as a member of the Constitutional Commission (1986-1987), and Chairman of its Committee on
Organization and Functioning of the Corporate Counsel's Office. The general counsel has emerged in Accountability of Public Officers, for which he was cited by the President of the Commission, Justice Cecilia-
4
Munoz-Palma for "innumerable amendments to reconcile government functions with individual freedoms Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA 327, the Court said:
and public accountability and the party-list system for the House of Representative." (pp. 128-129 Rollo)
(Italics supplied) "Appointment is an essentially discretionary power and must be performed by the officer in which it is
vested according to his best lights, the only condition being that the appointee should possess the
Just a word about the work of a negotiating team of which Atty. Monsod used to be a member. qualifications required by law. If he does, then the appointment cannot be faulted on the ground
that there are others better qualified who should have been preferred. This is a political question
In a loan agreement, for instance, a negotiating panel acts as a team, and which is adequately involving considerations of wisdom which only the appointing authority can decide." (italics supplied)
constituted to meet the various contingencies that arise during a negotiation. Besides top officials
of the Borrower concerned, there are the legal officer (such as the legal counsel), the finance No less emphatic was the Court in the case of Central Bank v. Civil Service Commission, 171 SCRA
manager, and an operations officer (such as an official involved in negotiating the contracts) who 744) where it stated:
comprise the members of the team. (Guillermo V. Soliven, "Loan Negotiating Strategies for
Developing Country Borrowers," Staff Paper No. 2, Central Bank of the Philippines, Manila, 1982, "It is well-settled that when the appointee is qualified, as in this case, and all the other legal
p. 11). (Underscoring supplied) requirements are satisfied, the Commission has no alternative but to attest to the appointment in
accordance with the Civil Service Law. The Commission has no authority to revoke an
After a fashion, the loan agreement is like a country's Constitution; it lays down the law as far as appointment on the ground that another person is more qualified for a particular position. It also
the loan transaction is concerned. Thus, the meat of any Loan Agreement can be has no authority to direct the appointment of a substitute of its choice. To do so would be an
compartmentalized into five (5) fundamental parts: (1) business terms; (2) borrower's encroachment on the discretion vested upon the appointing authority. An appointment is essentially within
representation; (3) conditions of closing; (4) covenants; and (5) events of default. (Ibid., p. 13). the discretionary power of whomsoever it is vested, subject to the only condition that the appointee should
possess the qualifications required by law." (Italics supplied)
In the same vein, lawyers play an important role in any debt restructuring program. For aside from
performing the tasks of legislative drafting and legal advising, they score national development The appointing process in a regular appointment as in the case at bar, consists of four (4)
policies as key factors in maintaining their countries' sovereignty. (Condensed from the work stages: (1) nomination; (2) confirmation by the Commission on Appointments; (3) issuance of a
paper, entitled "Wanted: Development Lawyers for Developing Nations," submitted by L. Michael commission (in the Philippines, upon submission by the Commission on Appointments of its
Hager, regional legal adviser of the United States Agency for International Development, during certificate of confirmation, the President issues the permanent appointment; and (4)
the Session on Law for the Development of Nations at the Abidjan World Conference in Ivory acceptance e.g., oath-taking, posting of bond, etc.... (Lacson v. Romero, No. L-3081, October 14, 1949;
Coast, sponsored by the World Peace Through Law Center on August 26-31, 1973). (Italics Gonzales, Law on Public Officers, p. 200)
supplied)
The power of the Commission on Appointments to give its consent to the nomination of Monsod
Loan concessions and compromises, perhaps even more so than purely renegotiation policies, demand as Chairman of the Commission on Elections is mandated by Section 1(2) Sub-Article C, Article IX
expertise in the law of contracts, in legislation and agreement drafting and in renegotiation. Necessarily, a of the Constitution which provides:
sovereign lawyer may work with an international business specialist or an economist in the
formulation of a model loan agreement. Debt restructuring contract agreements contain such a "The Chairman and the Commissioners shall be appointed by the President with the consent of the
mixture of technical language that they should be carefully drafted and signed only with the Commission on Appointments for a term of seven years without reappointment. Of those first
advise of competent counsel in conjunction with the guidance of adequate technical support appointed, three Members shall hold office for seven years, two Members for five years, and the
personnel. (See International Law Aspects of the Philippine External Debts, an unpublished last Members for three years, without reappointment. Appointment to any vacancy shall be only
dissertation, U.S.T. Graduate School of Law, 1987, p. 321). (Italics supplied) for the unexpired term of the predecessor. In no case shall any Member be appointed or
designated in a temporary or acting capacity."
A critical aspect of sovereign debt restructuring/contract construction is the set of terms and
conditions which determines the contractual remedies for a failure to perform one or more Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his definition of the practice
elements of the contract. A good agreement must not only define the responsibilities of both of law is the traditional or stereotyped notion of law practice, as distinguished from the modern
parties, but must also state the recourse open to either party when the other fails to discharge an concept of the practice of law, which modern connotation is exactly what was intended by the eminent
obligation. For a compleat debt restructuring represents a devotion to that principle which in the framers of the 1987 Constitution. Moreover, Justice Padilla's definition would require generally a
ultimate analysis is sine qua non for foreign loan agreements an adherence to the rule of law in habitual law practice, perhaps practised two or three times a week and would outlaw say, law
domestic and international affairs of whose kind U.S. Supreme Court Justice Oliver Wendell practice once or twice a year for ten consecutive years. Clearly, this is far from the constitutional
Holmes, Jr. once said; 'They carry no banners, they beat no drums; but where they are, men learn intent.
that bustle and bush are not the equal of quiet genius and serene mastery.' (See Ricardo J. Romulo,
"The Role of Lawyers in Foreign Investments," Integrated Bar of the Philippine Journal, Vol. 15, Nos. 3 Upon the other hand, the separate opinion of Justice Isagani Cruz states that in my written
and 4, Third and Fourth Quarters, 1977, p. 265). opinion, I made use of a definition of law practice which really means nothing because the
definition says that law practice "... is what people ordinarily mean by the practice of law." True I
Interpreted in the light of the various definitions of the term "practice of law", particularly the modern cited the definition but only by way of sarcasm as evident from my statement that the definition of
concept of law practice, and taking into consideration the liberal construction intended by the framers of the law practice by "traditional areas of law practice is essentially tautologous" or defining a phrase by
Constitution, Atty. Monsod's past work experiences as a lawyer-economist, a lawyer-manager, a lawyer- means of the phrase itself that is being defined.
entrepreneur of industry, a lawyer-negotiator of contracts, and a lawyer-legislator of both the rich and the
poor - verily more than satisfy the constitutional requirement - that he has been engaged in the practice of Justice Cruz goes on to say in substance that since the law covers almost all situations, most
law for at least ten years. individuals, in making use of the law, or in advising others on what the law means, are actually
5
practicing law. In that sense, perhaps, but we should not lose sight of the fact that Mr. Monsod is a
lawyer, a member of the Philippine Bar, who has been practicing law for over ten years. This is 201 SCRA 210
different from the acts of persons practicing law, without first becoming lawyers.
September 1991
Justice Cruz also says that the Supreme Court can even disqualify an elected President of the
Philippines, say, on the ground that he lacks one or more qualifications. This matter, I greatly Facts: Respondent Christian Monsod was nominated by President Corazon C. Aquino to the
doubt. For one thing, how can an action or petition be brought against the President? And even position of chairman of the COMELEC. Petitioner opposed the nomination because allegedly
assuming that he is indeed disqualified, how can the action be entertained since he is the Monsod does not posses required qualification of having been engaged in the practice of law for at
incumbent President? least ten years. The 1987 constitution provides in Section 1, Article IX-C: There shall be a
Commission on Elections composed of a Chairman and six Commissioners who shall be natural-
We now proceed: born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of
age, holders of a college degree, and must not have been candidates for any elective position in the
The Commission on the basis of evidence submitted during the public hearings on Monsod's immediately preceding elections. However, a majority thereof, including the Chairman, shall be
confirmation, implicitly determined that he possessed the necessary qualifications as required by members of the Philippine Bar who have been engaged in the practice of law for at least ten years.
law. The judgment rendered by the Commission in the exercise of such an acknowledged power is
beyond judicial interference except only upon a clear showing of a grave abuse of discretion Issue: Whether the respondent does not posses the required qualification of having engaged in the
amounting to lack or excess of jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only where such practice of law for at least ten years.
grave abuse of discretion is clearly shown shall the Court interfere with the Commission's
judgment. In the instant case, there is no occasion for the exercise of the Court's corrective power, Held: In the case of Philippine Lawyers Association vs. Agrava, stated: The practice of law is not
since no abuse, much less a grave abuse of discretion, that would amount to lack or excess of limited to the conduct of cases or litigation in court; it embraces the preparation of pleadings and
jurisdiction and would warrant the issuance of the writs prayed, for has been clearly shown. other papers incident to actions and special proceeding, the management of such actions and
proceedings on behalf of clients before judges and courts, and in addition, conveying. In general,
Additionally, consider the following: all advice to clients, and all action taken for them in matters connected with the law incorporation
services, assessment and condemnation services, contemplating an appearance before judicial
If the Commission on Appointments rejects a nominee by the President, may the body, the foreclosure of mortgage, enforcement of a creditor’s claim in bankruptcy and insolvency
(1) Supreme Court reverse the Commission, and thus in effect confirm the appointment? proceedings, and conducting proceedings in attachment, and in matters of estate and guardianship
Clearly, the answer is in the negative. have been held to constitute law practice. Practice of law means any activity, in or out court, which
requires the application of law, legal procedure, knowledge, training and experience.
In the same vein, may the Court reject the nominee, whom the Commission
(2)
has confirmed? The answer is likewise clear. The contention that Atty. Monsod does not posses the required qualification of having engaged in
the practice of law for at least ten years is incorrect since Atty. Monsod’s past work experience as a
If the United States Senate (which is the confirming body in the U.S. Congress) decides lawyer-economist, a lawyer-manager, a lawyer-entrepreneur of industry, a lawyer-negotiator of
(3) to confirm a Presidential nominee, it would be incredible that the U.S. Supreme Court contracts, and a lawyer-legislator of both rich and the poor – verily more than satisfy the
would still reverse the U.S. Senate. constitutional requirement for the position of COMELEC chairman, The respondent has been
engaged in the practice of law for at least ten years does In the view of the foregoing, the petition is
Finally, one significant legal maxim is: DISMISSED.
"We must interpret not by the letter that killeth, but by the spirit that giveth life."
Take this hypothetical case of Samson and Delilah. Once, the procurator of Judea asked Delilah
(who was Samson's beloved) for help in capturing Samson. Delilah agreed on condition that
"No blade shall touch his skin; No blood shall flow from his veins."
When Samson (his long hair cut by Delilah) was captured, the procurator placed an iron rod
burning white-hot two or three inches away from in front of Samson's eyes. This blinded the
man. Upon hearing of what had happened to her beloved, Delilah was beside herself with anger,
and fuming with righteous fury, accused the procurator of reneging on his word. The procurator
calmly replied: "Did any blade touch his skin? Did any blood flow from his veins?" The procurator
was clearly relying on the letter, not the spirit of the agreement.
SO ORDERED.