G.R. No.

100113 September 3, 1991

RENATO CAYETANO, petitioner,
vs.
CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON
APPOINTMENT, and HON. GUILLERMO CARAGUE, in his capacity as Secretary
of Budget and Management, respondents.
Renato L. Cayetano for and in his own behalf.
Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.

PARAS, J.:
We are faced here with a controversy of far-reaching proportions. While ostensibly
only legal issues are involved, the Court's decision in this case would indubitably
have a profound effect on the political aspect of our national existence.
The 1987 Constitution provides in Section 1 (1), Article IX-C:
There shall be a Commission on Elections composed of a Chairman and six
Commissioners who shall be natural-born citizens of the Philippines and, at
the time of their appointment, at least thirty-five years of age, holders of a
college degree, and must not have been candidates for any elective position
in the immediately preceding -elections. However, a majority thereof, including
the Chairman, shall be members of the Philippine Bar who have been
engaged in the practice of law for at least ten years. (Emphasis supplied)
The aforequoted provision is patterned after Section l(l), Article XII-C of the 1973
Constitution which similarly provides:
There shall be an independent Commission on Elections composed of a Chairman
and eight Commissioners who shall be natural-born citizens of the Philippines and,
at the time of their appointment, at least thirty-five years of age and holders of a
college degree. However, a majority thereof, including the Chairman, shall be
members of the Philippine Bar who have been engaged in the practice of law for at
least ten years.' (Emphasis supplied)
Regrettably, however, there seems to be no jurisprudence as to what constitutes
practice of law as a legal qualification to an appointive office.
Black defines "practice of law" as:
The rendition of services requiring the knowledge and the application of legal
principles and technique to serve the interest of another with his consent. It is
not limited to appearing in court, or advising and assisting in the conduct of
litigation, but embraces the preparation of pleadings, and other papers
incident to actions and special proceedings, conveyancing, the preparation of
legal instruments of all kinds, and the giving of all legal advice to clients. It
embraces all advice to clients and all actions taken for them in matters
connected with the law. An attorney engages in the practice of law by
 maintaining an office where he is held out to be-an attorney, using a
letterhead describing himself as an attorney, counseling clients in legal
matters, negotiating with opposing counsel about pending litigation, and fixing
and collecting fees for services rendered by his associate. (Black's Law
Dictionary, 3rd ed.)
The practice of law is not limited to the conduct of cases in court. (Land Title
Abstract and Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650) A person is also
considered to be in the practice of law when he:
... for valuable consideration engages in the business of advising person,
firms, associations or corporations as to their rights under the law, or appears
in a representative capacity as an advocate in proceedings pending or
prospective, before any court, commissioner, referee, board, body, committee,
or commission constituted by law or authorized to settle controversies and
there, in such representative capacity performs any act or acts for the purpose
of obtaining or defending the rights of their clients under the law. Otherwise
stated, one who, in a representative capacity, engages in the business of
advising clients as to their rights under the law, or while so engaged performs
any act or acts either in court or outside of court for that purpose, is engaged
in the practice of law. (State ex. rel. Mckittrick v..C.S. Dudley and Co., 102
S.W. 2d 895, 340 Mo. 852)
This Court in the case of Philippine Lawyers Association v.Agrava, (105 Phil.
173,176-177) stated:
The practice of law is not limited to the conduct of cases or litigation in court; it
embraces the preparation of pleadings and other papers incident to actions
and special proceedings, the management of such actions and proceedings
on behalf of clients before judges and courts, and in addition, conveying. In
general, all advice to clients, and all action taken for them in
matters connected with the law incorporation services, assessment and
condemnation services contemplating an appearance before a judicial body,
the foreclosure of a mortgage, enforcement of a creditor's claim in bankruptcy
and insolvency proceedings, and conducting proceedings in attachment, and
in matters of estate and guardianship have been held to constitute law
practice, as do the preparation and drafting of legal instruments, where the
work done involves the determination by the trained legal mind of the legal
effect of facts and conditions. (5 Am. Jr. p. 262, 263). (Emphasis supplied)
Practice of law under modem conditions consists in no small part of work
performed outside of any court and having no immediate relation to
proceedings in court. It embraces conveyancing, the giving of legal advice on
a large variety of subjects, and the preparation and execution of legal
instruments covering an extensive field of business and trust relations and
other affairs. Although these transactions may have no direct connection with
court proceedings, they are always subject to become involved in litigation.
They require in many aspects a high degree of legal skill, a wide experience
with men and affairs, and great capacity for adaptation to difficult and complex
situations. These customary functions of an attorney or counselor at law bear
an intimate relation to the administration of justice by the courts. No valid
 distinction, so far as concerns the question set forth in the order, can be
drawn between that part of the work of the lawyer which involves appearance
in court and that part which involves advice and drafting of instruments in his
office. It is of importance to the welfare of the public that these manifold
customary functions be performed by persons possessed of adequate
learning and skill, of sound moral character, and acting at all times under the
heavy trust obligations to clients which rests upon all attorneys.
(Moran, Comments on the Rules of Court, Vol. 3 [1953 ed.] , p. 665-666,
citing In re Opinion of the Justices [Mass.], 194 N.E. 313, quoted in Rhode Is.
Bar Assoc. v. Automobile Service Assoc. [R.I.] 179 A. 139,144). (Emphasis
ours)
The University of the Philippines Law Center in conducting orientation briefing for
new lawyers (1974-1975) listed the dimensions of the practice of law in even broader
terms as advocacy, counselling and public service.
One may be a practicing attorney in following any line of employment in the
profession. If what he does exacts knowledge of the law and is of a kind usual
for attorneys engaging in the active practice of their profession, and he follows
some one or more lines of employment such as this he is a practicing attorney
at law within the meaning of the statute. (Barr v. Cardell, 155 NW 312)
Practice of law means any activity, in or out of court, which requires the application of
law, legal procedure, knowledge, training and experience. "To engage in the practice
of law is to perform those acts which are characteristics of the profession. Generally,
to practice law is to give notice or render any kind of service, which device or service
requires the use in any degree of legal knowledge or skill." (111 ALR 23)
The following records of the 1986 Constitutional Commission show that it has
adopted a liberal interpretation of the term "practice of law."
MR. FOZ. Before we suspend the session, may I make a manifestation which
I forgot to do during our review of the provisions on the Commission on Audit.
May I be allowed to make a very brief statement?
THE PRESIDING OFFICER (Mr. Jamir).
The Commissioner will please proceed.
MR. FOZ. This has to do with the qualifications of the members of the
Commission on Audit. Among others, the qualifications provided for by
Section I is that "They must be Members of the Philippine Bar" — I am
quoting from the provision — "who have been engaged in the practice of law
for at least ten years".
To avoid any misunderstanding which would result in excluding members of the Bar
who are now employed in the COA or Commission on Audit, we would like to make
the clarification that this provision on qualifications regarding members of the Bar
does not necessarily refer or involve actual practice of law outside the COA We have
to interpret this to mean that as long as the lawyers who are employed in the COA
are using their legal knowledge or legal talent in their respective work within COA,
then they are qualified to be considered for appointment as members or
commissioners, even chairman, of the Commission on Audit.
This has been discussed by the Committee on Constitutional Commissions and
Agencies and we deem it important to take it up on the floor so that this interpretation
may be made available whenever this provision on the qualifications as regards
members of the Philippine Bar engaging in the practice of law for at least ten years is
taken up.
MR. OPLE. Will Commissioner Foz yield to just one question.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is
equivalent to the requirement of a law practice that is set forth in the Article on
the Commission on Audit?
MR. FOZ. We must consider the fact that the work of COA, although it is
auditing, will necessarily involve legal work; it will involve legal work. And,
therefore, lawyers who are employed in COA now would have the necessary
qualifications in accordance with the Provision on qualifications under our
provisions on the Commission on Audit. And, therefore, the answer is yes.
MR. OPLE. Yes. So that the construction given to this is that this is equivalent
to the practice of law.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Thank you.
... ( Emphasis supplied)
Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that the
Chairman and two Commissioners of the Commission on Audit (COA) should either
be certified public accountants with not less than ten years of auditing practice, or
members of the Philippine Bar who have been engaged in the practice of law for at
least ten years. (emphasis supplied)
Corollary to this is the term "private practitioner" and which is in many ways
synonymous with the word "lawyer." Today, although many lawyers do not engage in
private practice, it is still a fact that the majority of lawyers are private practitioners.
(Gary Munneke, Opportunities in Law Careers [VGM Career Horizons: Illinois],
[1986], p. 15).
At this point, it might be helpful to define private practice. The term, as commonly
understood, means "an individual or organization engaged in the business of
delivering legal services." (Ibid.). Lawyers who practice alone are often called "sole
practitioners." Groups of lawyers are called "firms." The firm is usually a partnership
and members of the firm are the partners. Some firms may be organized as
professional corporations and the members called shareholders. In either case, the
members of the firm are the experienced attorneys. In most firms, there are younger
or more inexperienced salaried attorneyscalled "associates." (Ibid.).
The test that defines law practice by looking to traditional areas of law practice is
essentially tautologous, unhelpful defining the practice of law as that which lawyers
do. (Charles W. Wolfram, Modern Legal Ethics [West Publishing Co.: Minnesota,
1986], p. 593). The practice of law is defined as the performance of any acts . . . in or
out of court, commonly understood to be the practice of law. (State Bar Ass'n v.
Connecticut Bank & Trust Co., 145 Conn. 222, 140 A.2d 863, 870 [1958]
[quoting Grievance Comm. v. Payne, 128 Conn. 325, 22 A.2d 623, 626 [1941]).
Because lawyers perform almost every function known in the commercial and
governmental realm, such a definition would obviously be too global to be workable.
(Wolfram, op. cit.).
The appearance of a lawyer in litigation in behalf of a client is at once the most
publicly familiar role for lawyers as well as an uncommon role for the average lawyer.
Most lawyers spend little time in courtrooms, and a large percentage spend their
entire practice without litigating a case. (Ibid., p. 593). Nonetheless, many lawyers do
continue to litigate and the litigating lawyer's role colors much of both the public
image and the self perception of the legal profession. (Ibid.).
In this regard thus, the dominance of litigation in the public mind reflects history, not
reality. (Ibid.). Why is this so? Recall that the late Alexander SyCip, a corporate
lawyer, once articulated on the importance of a lawyer as a business counselor in
this wise: "Even today, there are still uninformed laymen whose concept of an
attorney is one who principally tries cases before the courts. The members of the
bench and bar and the informed laymen such as businessmen, know that in most
developed societies today, substantially more legal work is transacted in law offices
than in the courtrooms. General practitioners of law who do both litigation and non-
litigation work also know that in most cases they find themselves spending more time
doing what [is] loosely desccribe[d] as business counseling than in trying cases. The
business lawyer has been described as the planner, the diagnostician and the trial
lawyer, the surgeon. I[t] need not [be] stress[ed] that in law, as in medicine, surgery
should be avoided where internal medicine can be effective." (Business Star,
"Corporate Finance Law," Jan. 11, 1989, p. 4).
In the course of a working day the average general practitioner wig engage in a
number of legal tasks, each involving different legal doctrines, legal skills, legal
processes, legal institutions, clients, and other interested parties. Even the
increasing numbers of lawyers in specialized practice wig usually perform at least
some legal services outside their specialty. And even within a narrow specialty such
as tax practice, a lawyer will shift from one legal task or role such as advice-giving to
an importantly different one such as representing a client before an administrative
agency. (Wolfram, supra, p. 687).
By no means will most of this work involve litigation, unless the lawyer is one of the
relatively rare types — a litigator who specializes in this work to the exclusion of
much else. Instead, the work will require the lawyer to have mastered the full range
of traditional lawyer skills of client counselling, advice-giving, document drafting, and
negotiation. And increasingly lawyers find that the new skills of evaluation and
mediation are both effective for many clients and a source of employment. (Ibid.).
Most lawyers will engage in non-litigation legal work or in litigation work that is
constrained in very important ways, at least theoretically, so as to remove from it
some of the salient features of adversarial litigation. Of these special roles, the most
prominent is that of prosecutor. In some lawyers' work the constraints are imposed
both by the nature of the client and by the way in which the lawyer is organized into a
social unit to perform that work. The most common of these roles are those of
corporate practice and government legal service. (Ibid.).
In several issues of the Business Star, a business daily, herein below quoted are
emerging trends in corporate law practice, a departure from the traditional concept of
practice of law.
We are experiencing today what truly may be called a revolutionary
transformation in corporate law practice. Lawyers and other professional
groups, in particular those members participating in various legal-policy
decisional contexts, are finding that understanding the major emerging trends
in corporation law is indispensable to intelligent decision-making.
Constructive adjustment to major corporate problems of today requires an
accurate understanding of the nature and implications of the corporate law
research function accompanied by an accelerating rate of information
accumulation. The recognition of the need for such improved corporate legal
policy formulation, particularly "model-making" and "contingency planning,"
has impressed upon us the inadequacy of traditional procedures in many
decisional contexts.
In a complex legal problem the mass of information to be processed, the
sorting and weighing of significant conditional factors, the appraisal of major
trends, the necessity of estimating the consequences of given courses of
action, and the need for fast decision and response in situations of acute
danger have prompted the use of sophisticated concepts of information flow
theory, operational analysis, automatic data processing, and electronic
computing equipment. Understandably, an improved decisional structure must
stress the predictive component of the policy-making process, wherein a
"model", of the decisional context or a segment thereof is developed to test
projected alternative courses of action in terms of futuristic effects flowing
therefrom.
Although members of the legal profession are regularly engaged in predicting
and projecting the trends of the law, the subject of corporate finance law has
received relatively little organized and formalized attention in the philosophy of
advancing corporate legal education. Nonetheless, a cross-disciplinary
approach to legal research has become a vital necessity.
Certainly, the general orientation for productive contributions by those trained
primarily in the law can be improved through an early introduction to multi-
variable decisional context and the various approaches for handling such
problems. Lawyers, particularly with either a master's or doctorate degree in
business administration or management, functioning at the legal policy level of
decision-making now have some appreciation for the concepts and analytical
techniques of other professions which are currently engaged in similar types
of complex decision-making.
Truth to tell, many situations involving corporate finance problems would
require the services of an astute attorney because of the complex legal
implications that arise from each and every necessary step in securing and
maintaining the business issue raised. (Business Star, "Corporate Finance
Law," Jan. 11, 1989, p. 4).
In our litigation-prone country, a corporate lawyer is assiduously referred to as
the "abogado de campanilla." He is the "big-time" lawyer, earning big money
and with a clientele composed of the tycoons and magnates of business and
industry.
Despite the growing number of corporate lawyers, many people could not
explain what it is that a corporate lawyer does. For one, the number of
attorneys employed by a single corporation will vary with the size and type of
the corporation. Many smaller and some large corporations farm out all their
legal problems to private law firms. Many others have in-house counsel only
for certain matters. Other corporation have a staff large enough to handle
most legal problems in-house.
A corporate lawyer, for all intents and purposes, is a lawyer who handles the
legal affairs of a corporation. His areas of concern or jurisdiction may
include, inter alia: corporate legal research, tax laws research, acting out as
corporate secretary (in board meetings), appearances in both courts and
other adjudicatory agencies (including the Securities and Exchange
Commission), and in other capacities which require an ability to deal with the
law.
At any rate, a corporate lawyer may assume responsibilities other than the
legal affairs of the business of the corporation he is representing. These
include such matters as determining policy and becoming involved in
management. ( Emphasis supplied.)
In a big company, for example, one may have a feeling of being isolated from
the action, or not understanding how one's work actually fits into the work of
the orgarnization. This can be frustrating to someone who needs to see the
results of his work first hand. In short, a corporate lawyer is sometimes offered
this fortune to be more closely involved in the running of the business.
Moreover, a corporate lawyer's services may sometimes be engaged by a
multinational corporation (MNC). Some large MNCs provide one of the few
opportunities available to corporate lawyers to enter the international law field.
After all, international law is practiced in a relatively small number of
companies and law firms. Because working in a foreign country is perceived
by many as glamorous, tills is an area coveted by corporate lawyers. In most
cases, however, the overseas jobs go to experienced attorneys while the
younger attorneys do their "international practice" in law libraries. (Business
Star, "Corporate Law Practice," May 25,1990, p. 4).
This brings us to the inevitable, i.e., the role of the lawyer in the realm of
finance. To borrow the lines of Harvard-educated lawyer Bruce Wassertein, to
wit: "A bad lawyer is one who fails to spot problems, a good lawyer is one who
perceives the difficulties, and the excellent lawyer is one who surmounts
them." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).
Today, the study of corporate law practice direly needs a "shot in the arm," so
to speak. No longer are we talking of the traditional law teaching method of
confining the subject study to the Corporation Code and the Securities Code
but an incursion as well into the intertwining modern management issues.
Such corporate legal management issues deal primarily with three (3) types of
learning: (1) acquisition of insights into current advances which are of
particular significance to the corporate counsel; (2) an introduction to usable
disciplinary skins applicable to a corporate counsel's management
responsibilities; and (3) a devotion to the organization and management of the
legal function itself.
These three subject areas may be thought of as intersecting circles, with a
shared area linking them. Otherwise known as "intersecting managerial
jurisprudence," it forms a unifying theme for the corporate counsel's total
learning.
Some current advances in behavior and policy sciences affect the counsel's
role. For that matter, the corporate lawyer reviews the globalization process,
including the resulting strategic repositioning that the firms he provides
counsel for are required to make, and the need to think about a corporation's;
strategy at multiple levels. The salience of the nation-state is being reduced
as firms deal both with global multinational entities and simultaneously with
sub-national governmental units. Firms increasingly collaborate not only with
public entities but with each other — often with those who are competitors in
other arenas.
Also, the nature of the lawyer's participation in decision-making within the
corporation is rapidly changing. The modem corporate lawyer has gained a
new role as a stakeholder — in some cases participating in the organization
and operations of governance through participation on boards and other
decision-making roles. Often these new patterns develop alongside existing
legal institutions and laws are perceived as barriers. These trends are
complicated as corporations organize for global operations. ( Emphasis
supplied)
The practising lawyer of today is familiar as well with governmental policies
toward the promotion and management of technology. New collaborative
arrangements for promoting specific technologies or competitiveness more
generally require approaches from industry that differ from older, more
adversarial relationships and traditional forms of seeking to influence
governmental policies. And there are lessons to be learned from other
countries. In Europe, Esprit, Eureka and Race are examples of collaborative
efforts between governmental and business Japan's MITI is world famous.
(Emphasis supplied)
Following the concept of boundary spanning, the office of the Corporate
Counsel comprises a distinct group within the managerial structure of all kinds
of organizations. Effectiveness of both long-term and temporary groups within
organizations has been found to be related to indentifiable factors in the
group-context interaction such as the groups actively revising their knowledge
of the environment coordinating work with outsiders, promoting team
achievements within the organization. In general, such external activities are
better predictors of team performance than internal group processes.
In a crisis situation, the legal managerial capabilities of the corporate lawyer
vis-a-vis the managerial mettle of corporations are challenged. Current
research is seeking ways both to anticipate effective managerial procedures
and to understand relationships of financial liability and insurance
considerations. (Emphasis supplied)
Regarding the skills to apply by the corporate counsel, three factors
are apropos:
First System Dynamics. The field of systems dynamics has been found an
effective tool for new managerial thinking regarding both planning and
pressing immediate problems. An understanding of the role of feedback loops,
inventory levels, and rates of flow, enable users to simulate all sorts of
systematic problems — physical, economic, managerial, social, and
psychological. New programming techniques now make the system dynamics
principles more accessible to managers — including corporate counsels.
(Emphasis supplied)
Second Decision Analysis. This enables users to make better decisions
involving complexity and uncertainty. In the context of a law department, it can
be used to appraise the settlement value of litigation, aid in negotiation
settlement, and minimize the cost and risk involved in managing a portfolio of
cases. (Emphasis supplied)
Third Modeling for Negotiation Management. Computer-based models can be
used directly by parties and mediators in all lands of negotiations. All
integrated set of such tools provide coherent and effective negotiation
support, including hands-on on instruction in these techniques. A simulation
case of an international joint venture may be used to illustrate the point.
[Be this as it may,] the organization and management of the legal function,
concern three pointed areas of consideration, thus:
Preventive Lawyering. Planning by lawyers requires special skills that
comprise a major part of the general counsel's responsibilities. They differ
from those of remedial law. Preventive lawyering is concerned with minimizing
the risks of legal trouble and maximizing legal rights for such legal entities at
that time when transactional or similar facts are being considered and made.
Managerial Jurisprudence. This is the framework within which are undertaken
those activities of the firm to which legal consequences attach. It needs to be
directly supportive of this nation's evolving economic and organizational fabric
as firms change to stay competitive in a global, interdependent environment.
The practice and theory of "law" is not adequate today to facilitate the
relationships needed in trying to make a global economy work.
Organization and Functioning of the Corporate Counsel's Office. The general
counsel has emerged in the last decade as one of the most vibrant subsets of
the legal profession. The corporate counsel hear responsibility for key aspects
of the firm's strategic issues, including structuring its global operations,
 managing improved relationships with an increasingly diversified body of
employees, managing expanded liability exposure, creating new and varied
interactions with public decision-makers, coping internally with more complex
make or by decisions.
This whole exercise drives home the thesis that knowing corporate law is not
enough to make one a good general corporate counsel nor to give him a full
sense of how the legal system shapes corporate activities. And even if the
corporate lawyer's aim is not the understand all of the law's effects on
corporate activities, he must, at the very least, also gain a working knowledge
of the management issues if only to be able to grasp not only the basic legal
"constitution' or makeup of the modem corporation. "Business Star", "The
Corporate Counsel," April 10, 1991, p. 4).
The challenge for lawyers (both of the bar and the bench) is to have more
than a passing knowledge of financial law affecting each aspect of their work.
Yet, many would admit to ignorance of vast tracts of the financial law territory.
What transpires next is a dilemma of professional security: Will the lawyer
admit ignorance and risk opprobrium?; or will he feign understanding and risk
exposure? (Business Star, "Corporate Finance law," Jan. 11, 1989, p. 4).
Respondent Christian Monsod was nominated by President Corazon C. Aquino to
the position of Chairman of the COMELEC in a letter received by the Secretariat of
the Commission on Appointments on April 25, 1991. Petitioner opposed the
nomination because allegedly Monsod does not possess the required qualification of
having been engaged in the practice of law for at least ten years.
On June 5, 1991, the Commission on Appointments confirmed the nomination of
Monsod as Chairman of the COMELEC. On June 18, 1991, he took his oath of
office. On the same day, he assumed office as Chairman of the COMELEC.
Challenging the validity of the confirmation by the Commission on Appointments of
Monsod's nomination, petitioner as a citizen and taxpayer, filed the instant petition for
certiorari and Prohibition praying that said confirmation and the consequent
appointment of Monsod as Chairman of the Commission on Elections be declared
null and void.
Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar
examinations of 1960 with a grade of 86-55%. He has been a dues paying member
of the Integrated Bar of the Philippines since its inception in 1972-73. He has also
been paying his professional license fees as lawyer for more than ten years. (p. 124,
Rollo)
After graduating from the College of Law (U.P.) and having hurdled the bar, Atty.
Monsod worked in the law office of his father. During his stint in the World Bank
Group (1963-1970), Monsod worked as an operations officer for about two years in
Costa Rica and Panama, which involved getting acquainted with the laws of
member-countries negotiating loans and coordinating legal, economic, and project
work of the Bank. Upon returning to the Philippines in 1970, he worked with the
Meralco Group, served as chief executive officer of an investment bank and
subsequently of a business conglomerate, and since 1986, has rendered services to
various companies as a legal and economic consultant or chief executive officer. As
former Secretary-General (1986) and National Chairman (1987) of NAMFREL.
Monsod's work involved being knowledgeable in election law. He appeared for
NAMFREL in its accreditation hearings before the Comelec. In the field of advocacy,
Monsod, in his personal capacity and as former Co-Chairman of the Bishops
Businessmen's Conference for Human Development, has worked with the under
privileged sectors, such as the farmer and urban poor groups, in initiating, lobbying
for and engaging in affirmative action for the agrarian reform law and lately the urban
land reform bill. Monsod also made use of his legal knowledge as a member of the
Davide Commission, a quast judicial body, which conducted numerous hearings
(1990) and as a member of the Constitutional Commission (1986-1987), and
Chairman of its Committee on Accountability of Public Officers, for which he was
cited by the President of the Commission, Justice Cecilia Muñoz-Palma for
"innumerable amendments to reconcile government functions with individual
freedoms and public accountability and the party-list system for the House of
Representative. (pp. 128-129 Rollo) ( Emphasis supplied)
Just a word about the work of a negotiating team of which Atty. Monsod used to be a
member.
In a loan agreement, for instance, a negotiating panel acts as a team, and
which is adequately constituted to meet the various contingencies that arise
during a negotiation. Besides top officials of the Borrower concerned, there
are the legal officer (such as the legal counsel), the finance manager, and
an operations officer (such as an official involved in negotiating the contracts)
who comprise the members of the team. (Guillermo V. Soliven, "Loan
Negotiating Strategies for Developing Country Borrowers," Staff Paper No. 2,
Central Bank of the Philippines, Manila, 1982, p. 11). (Emphasis supplied)
After a fashion, the loan agreement is like a country's Constitution; it lays
down the law as far as the loan transaction is concerned. Thus, the meat of
any Loan Agreement can be compartmentalized into five (5) fundamental
parts: (1) business terms; (2) borrower's representation; (3) conditions of
closing; (4) covenants; and (5) events of default. (Ibid., p. 13).
In the same vein, lawyers play an important role in any debt restructuring
program. For aside from performing the tasks of legislative drafting and legal
advising, they score national development policies as key factors in
maintaining their countries' sovereignty. (Condensed from the work paper,
entitled "Wanted: Development Lawyers for Developing Nations," submitted
by L. Michael Hager, regional legal adviser of the United States Agency for
International Development, during the Session on Law for the Development of
Nations at the Abidjan World Conference in Ivory Coast, sponsored by the
World Peace Through Law Center on August 26-31, 1973). ( Emphasis
supplied)
Loan concessions and compromises, perhaps even more so than purely
renegotiation policies, demand expertise in the law of contracts, in legislation
and agreement drafting and in renegotiation. Necessarily, a sovereign lawyer
may work with an international business specialist or an economist in the
formulation of a model loan agreement. Debt restructuring contract
agreements contain such a mixture of technical language that they should be
 carefully drafted and signed only with the advise of competent counsel in
conjunction with the guidance of adequate technical support personnel. (See
International Law Aspects of the Philippine External Debts, an unpublished
dissertation, U.S.T. Graduate School of Law, 1987, p. 321). ( Emphasis
supplied)
A critical aspect of sovereign debt restructuring/contract construction is the set
of terms and conditions which determines the contractual remedies for a
failure to perform one or more elements of the contract. A good agreement
must not only define the responsibilities of both parties, but must also state
the recourse open to either party when the other fails to discharge an
obligation. For a compleat debt restructuring represents a devotion to that
principle which in the ultimate analysis is sine qua non for foreign loan
agreements-an adherence to the rule of law in domestic and international
affairs of whose kind U.S. Supreme Court Justice Oliver Wendell Holmes, Jr.
once said: "They carry no banners, they beat no drums; but where they are,
men learn that bustle and bush are not the equal of quiet genius and serene
mastery." (See Ricardo J. Romulo, "The Role of Lawyers in Foreign
Investments," Integrated Bar of the Philippine Journal, Vol. 15, Nos. 3 and 4,
Third and Fourth Quarters, 1977, p. 265).
Interpreted in the light of the various definitions of the term Practice of law".
particularly the modern concept of law practice, and taking into consideration the
liberal construction intended by the framers of the Constitution, Atty. Monsod's past
work experiences as a lawyer-economist, a lawyer-manager, a lawyer-entrepreneur
of industry, a lawyer-negotiator of contracts, and a lawyer-legislator of both the rich
and the poor — verily more than satisfy the constitutional requirement — that he has
been engaged in the practice of law for at least ten years.
Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA 327,
the Court said:
Appointment is an essentially discretionary power and must be performed by
the officer in which it is vested according to his best lights, the only condition
being that the appointee should possess the qualifications required by law. If
he does, then the appointment cannot be faulted on the ground that there are
others better qualified who should have been preferred. This is a political
question involving considerations of wisdom which only the appointing
authority can decide. (emphasis supplied)
No less emphatic was the Court in the case of (Central Bank v. Civil Service
Commission, 171 SCRA 744) where it stated:
It is well-settled that when the appointee is qualified, as in this case, and all
the other legal requirements are satisfied, the Commission has no alternative
but to attest to the appointment in accordance with the Civil Service Law. The
Commission has no authority to revoke an appointment on the ground that
another person is more qualified for a particular position. It also has no
authority to direct the appointment of a substitute of its choice. To do so would
be an encroachment on the discretion vested upon the appointing authority.
An appointment is essentially within the discretionary power of whomsoever it
 is vested, subject to the only condition that the appointee should possess the
qualifications required by law. ( Emphasis supplied)
The appointing process in a regular appointment as in the case at bar, consists of
four (4) stages: (1) nomination; (2) confirmation by the Commission on
Appointments; (3) issuance of a commission (in the Philippines, upon submission by
the Commission on Appointments of its certificate of confirmation, the President
issues the permanent appointment; and (4) acceptance e.g., oath-taking, posting of
bond, etc. . . . (Lacson v. Romero, No. L-3081, October 14, 1949; Gonzales, Law on
Public Officers, p. 200)
The power of the Commission on Appointments to give its consent to the nomination
of Monsod as Chairman of the Commission on Elections is mandated by Section
1(2) Sub-Article C, Article IX of the Constitution which provides:
The Chairman and the Commisioners shall be appointed by the President with
the consent of the Commission on Appointments for a term of seven years
without reappointment. Of those first appointed, three Members shall hold
office for seven years, two Members for five years, and the last Members for
three years, without reappointment. Appointment to any vacancy shall be only
for the unexpired term of the predecessor. In no case shall any Member be
appointed or designated in a temporary or acting capacity.
Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his
definition of the practice of law is the traditional or stereotyped notion of law
practice, as distinguished from the modern concept of the practice of law,
which modern connotation is exactly what was intended by the eminent
framers of the 1987 Constitution. Moreover, Justice Padilla's definition would
require generally a habitual law practice, perhaps practised two or three times
a week and would outlaw say, law practice once or twice a year for ten
consecutive years. Clearly, this is far from the constitutional intent.
Upon the other hand, the separate opinion of Justice Isagani Cruz states that in my
written opinion, I made use of a definition of law practice which really means nothing
because the definition says that law practice " . . . is what people ordinarily mean by
the practice of law." True I cited the definition but only by way of sarcasm as evident
from my statement that the definition of law practice by "traditional areas of law
practice is essentially tautologous" or defining a phrase by means of the phrase itself
that is being defined.
Justice Cruz goes on to say in substance that since the law covers almost all
situations, most individuals, in making use of the law, or in advising others on what
the law means, are actually practicing law. In that sense, perhaps, but we should not
lose sight of the fact that Mr. Monsod is a lawyer, a member of the Philippine Bar,
who has been practising law for over ten years. This is different from the acts of
persons practising law, without first becoming lawyers.
Justice Cruz also says that the Supreme Court can even disqualify an elected
President of the Philippines, say, on the ground that he lacks one or more
qualifications. This matter, I greatly doubt. For one thing, how can an action or
petition be brought against the President? And even assuming that he is indeed
disqualified, how can the action be entertained since he is the incumbent President?
We now proceed:
The Commission on the basis of evidence submitted doling the public hearings on
Monsod's confirmation, implicitly determined that he possessed the necessary
qualifications as required by law. The judgment rendered by the Commission in the
exercise of such an acknowledged power is beyond judicial interference except only
upon a clear showing of a grave abuse of discretion amounting to lack or excess of
jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only where such grave abuse of
discretion is clearly shown shall the Court interfere with the Commission's judgment.
In the instant case, there is no occasion for the exercise of the Court's corrective
power, since no abuse, much less a grave abuse of discretion, that would amount to
lack or excess of jurisdiction and would warrant the issuance of the writs prayed, for
has been clearly shown.
Additionally, consider the following:
(1) If the Commission on Appointments rejects a nominee by the President,
may the Supreme Court reverse the Commission, and thus in
effect confirm the appointment? Clearly, the answer is in the negative.
(2) In the same vein, may the Court reject the nominee, whom the
Commission has confirmed? The answer is likewise clear.
(3) If the United States Senate (which is the confirming body in the U.S.
Congress) decides to confirm a Presidential nominee, it would be incredible
that the U.S. Supreme Court would still reverse the U.S. Senate.
Finally, one significant legal maxim is:
We must interpret not by the letter that killeth, but by the spirit that giveth life.
Take this hypothetical case of Samson and Delilah. Once, the procurator of Judea
asked Delilah (who was Samson's beloved) for help in capturing Samson. Delilah
agreed on condition that —
No blade shall touch his skin;
No blood shall flow from his veins.
When Samson (his long hair cut by Delilah) was captured, the procurator placed an
iron rod burning white-hot two or three inches away from in front of Samson's eyes.
This blinded the man. Upon hearing of what had happened to her beloved, Delilah
was beside herself with anger, and fuming with righteous fury, accused the
procurator of reneging on his word. The procurator calmly replied: "Did any blade
touch his skin? Did any blood flow from his veins?" The procurator was clearly
relying on the letter, not the spirit of the agreement.
In view of the foregoing, this petition is hereby DISMISSED.
SO ORDERED.
Fernan, C.J., Griño-Aquino and Medialdea, JJ., concur.
Feliciano, J., I certify that he voted to dismiss the petition. (Fernan, C.J.)
Sarmiento, J., is on leave.
Regalado, and Davide, Jr., J., took no part.
 THIRD DIVISION
[G.R. Nos. 89591-96. January 24, 2000]
PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. BONIFACIO SANZ
MACEDA, Presiding Judge of Branch 12, Regional Trial Court of Antique,
and AVELINO T. JAVELLANA, respondents.
R ES O LUTI ON
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 be detained 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.
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, the latter accepted cases and
[1]

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 finally
terminated 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 the same 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.
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 to defend 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. He must be
[3]

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. Let it be stressed that all
[4]

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
SET ASIDE. 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, and Ynares-Santiago,
JJ., concur.2/17/00 9:54 AM