Table of Contents

Brillantes v. Yorac 2
Cayetano v. Monsod 3
Gallardo v. Tabamo 30
Librado v. Cesar 34

EN BANC
[G.R. No. 93867 : December 18, 1990.]
192 SCRA 358
SIXTO S. BRILLANTES, JR., Petitioner, vs. HAYDEE B. YORAC, in her capacity as ACTING
CHAIRPERSON of the COMMISSION ON ELECTIONS, Respondent.
DECISION
CRUZ, J.:
The petitioner is challenging the designation by the President of the Philippines of Associate Commissioner
Haydee B. Yorac as Acting Chairman of the Commission on Elections, in place of Chairman Hilario B. Davide,
who had been named chairman of the fact-finding commission to investigate the December 1989 coup d' etat
attempt.
The qualifications of the respondent are conceded by the petitioner and are not in issue in this case. What is the
power of the President of the Philippines to make the challenged designation in view of the status of the
Commission on Elections as an independent constitutional body and the specific provision of Article IX-C,
Section 1(2) of the Constitution that "(I)n no case shall any Member (of the Commission on Elections) be
appointed or designated in a temporary or acting capacity."
The petitioner invokes the case of Nacionalista Party v. Bautista, 85 Phil. 101, where President Elpidio Quirino
designated the Solicitor General as acting member of the Commission on Elections and the Court revoked the
designation as contrary to the Constitution. It is also alleged that the respondent is not even the senior member
of the Commission on Elections, being outranked by Associate Commissioner Alfredo E. Abueg, Jr.:-cralaw
The petitioner contends that the choice of the Acting Chairman of the Commission on Elections is an internal
matter that should be resolved by the members themselves and that the intrusion of the President of the
Philippines violates their independence. He cites the practice in this Court, where the senior Associate Justice
serves as Acting Chief Justice in the absence of the Chief Justice. No designation from the President of the
Philippines is necessary.
In his Comment, the Solicitor General argues that no such designation is necessary in the case of the Supreme
Court because the temporary succession cited is provided for in Section 12 of the Judiciary Act of 1948. A
similar rule is found in Section 5 of BP 129 for the Court of Appeals. There is no such arrangement, however, in
the case of the Commission on Elections. The designation made by the President of the Philippines should
therefore be sustained for reasons of "administrative expediency," to prevent disruption of the functions of the
COMELEC.
Expediency is a dubious justification. It may also be an overstatement to suggest that the operations of the
Commission on Elections would have been disturbed or stalemated if the President of the Philippines had not
stepped in and designated an Acting Chairman. There did not seem to be any such problem. In any event, even
assuming that difficulty, we do not agree that "only the President (could) act to fill the hiatus," as the Solicitor
General maintains.
Article IX-A, Section 1, of the Constitution expressly describes all the Constitutional Commissions as
"independent." Although essentially executive in nature, they are not under the control of the President of the
Philippines in the discharge of their respective functions. Each of these Commissions conducts its own
proceedings under the applicable laws and its own rules and in the exercise of its own discretion. Its decisions,
orders and rulings are subject only to review on Certiorari by this Court as provided by the Constitution in
Article IX-A, Section 7.
The choice of a temporary chairman in the absence of the regular chairman comes under that discretion. That
discretion cannot be exercised for it, even with its consent, by the President of the Philippines.
A designation as Acting Chairman is by its very terms essentially temporary and therefore revocable at will. No
cause need be established to justify its revocation. Assuming its validity, the designation of the respondent as

Acting Chairman of the Commission on Elections may be withdrawn by the President of the Philippines at any
time and for whatever reason she sees fit. It is doubtful if the respondent, having accepted such designation,
will not be estopped from challenging its withdrawal.chanrobles virtual law library
It is true, as the Solicitor General points out, that the respondent cannot be removed at will from her
permanent position as Associate Commissioner. It is no less true, however, that she can be replaced as Acting
Chairman, with or without cause, and thus deprived of the powers and perquisites of that temporary position.
The lack of a statutory rule covering the situation at bar is no justification for the President of the Philippines to
fill the void by extending the temporary designation in favor of the respondent. This is still a government of laws
and not of men. The problem allegedly sought to be corrected, if it existed at all, did not call for presidential
action. The situation could have been handled by the members of the Commission on Elections themselves
without the participation of the President, however well-meaning.
In the choice of the Acting Chairman, the members of the Commission on Elections would most likely have been
guided by the seniority rule as they themselves would have appreciated it. In any event, that choice and the
basis thereof were for them and not the President to make.
The Court has not the slightest doubt that the President of the Philippines was moved only by the best of
motives when she issued the challenged designation. But while conceding her goodwill, we cannot sustain her
act because it conflicts with the Constitution. Hence, even as this Court revoked the designation in the Bautista
case, so too must it annul the designation in the case at bar.
The Constitution provides for many safeguards to the independence of the Commission on Elections, foremost
among which is the security of tenure of its members. That guaranty is not available to the respondent as
Acting Chairman of the Commission on Elections by designation of the President of the Philippines.
WHEREFORE, the designation by the President of the Philippines of respondent Haydee B. Yorac as Acting
Chairman of the Commission on Elections is declared UNCONSTITUTIONAL, and the respondent is hereby
ordered to desist from serving as such. This is without prejudice to the incumbent Associate Commissioners of
the Commission on Elections restoring her to the same position if they so desire, or choosing another member
in her place, pending the appointment of a permanent Chairman by the President of the Philippines with the
consent of the Commission on Appointments.: rd
SO ORDERED.
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.:p
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 mattersconnected 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 SecretaryGeneral (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

10

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 Muoz-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. 128129 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 2631, 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 issine 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

11

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.

12

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 confirma
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., Grio-Aquino and Medialdea, JJ., concur.
Feliciano, J., I certify that he voted to dismiss the petition. (Fernan, C.J.)
Sarmiento, J., is on leave.

13

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

Separate Opinions

NARVASA, J., concurring:

I concur with the decision of the majority written by Mr. Justice Paras, albeit only in the result; it does not appear to me that there
has been an adequate showing that the challenged determination by the Commission on Appointments-that the appointment of
respondent Monsod as Chairman of the Commission on Elections should, on the basis of his stated qualifications and after due
assessment thereof, be confirmed-was attended by error so gross as to amount to grave abuse of discretion and consequently
merits nullification by this Court in accordance with the second paragraph of Section 1, Article VIII of the Constitution. I therefore
vote to DENY the petition.

PADILLA, J., dissenting:

The records of this case will show that when the Court first deliberated on the Petition at bar, I voted not only to require the
respondents to comment on the Petition, but I was the sole vote for the issuance of a temporary restraining order to enjoin
respondent Monsod from assuming the position of COMELEC Chairman, while the Court deliberated on his constitutional
qualification for the office. My purpose in voting for a TRO was to prevent the inconvenience and even embarrassment to all
parties concerned were the Court to finally decide for respondent Monsod's disqualification. Moreover, a reading of the Petition
then in relation to established jurisprudence already showed prima facie that respondent Monsod did not possess the needed
qualification, that is, he had not engaged in the practice of law for at least ten (10) years prior to his appointment as COMELEC
Chairman.
After considering carefully respondent Monsod's comment, I am even more convinced that the constitutional requirement of
"practice of law for at least ten (10) years" has not been met.
The procedural barriers interposed by respondents deserve scant consideration because, ultimately, the core issue to be
resolved in this petition is the proper construal of the constitutional provision requiring a majority of the membership of
COMELEC, including the Chairman thereof to "have been engaged in the practice of law for at least ten (10) years." (Art. IX(C),
Section 1(1), 1987 Constitution). Questions involving the construction of constitutional provisions are best left to judicial
resolution. As declared in Angara v. Electoral Commission, (63 Phil. 139) "upon the judicial department is thrown the solemn and
inescapable obligation of interpreting the Constitution and defining constitutional boundaries."
The Constitution has imposed clear and specific standards for a COMELEC Chairman. Among these are that he must have
been "engaged in the practice of law for at least ten (10) years." It is the bounden duty of this Court to ensure that such standard
is met and complied with.
What constitutes practice of law? As commonly understood, "practice" refers to the actual performance or application of
knowledge as distinguished from mere possession of knowledge; it connotes an active, habitual,repeated or customary
action. 1 To "practice" law, or any profession for that matter, means, to exercise or pursue an employment or profession actively,
habitually, repeatedly or customarily.

14

Therefore, a doctor of medicine who is employed and is habitually performing the tasks of a nursing aide, cannot be said to be in
the "practice of medicine." A certified public accountant who works as a clerk, cannot be said to practice his profession as an
accountant. In the same way, a lawyer who is employed as a business executive or a corporate manager, other than as head or
attorney of a Legal Department of a corporation or a governmental agency, cannot be said to be in the practice of law.
As aptly held by this Court in the case of People vs. Villanueva: 2
Practice is more than an isolated appearance for it consists in frequent or customary actions, a succession of
acts of the same kind. In other words, it is frequent habitual exercise (State vs- Cotner, 127, p. 1, 87 Kan. 864,
42 LRA, M.S. 768). Practice of law to fall within the prohibition of statute has been interpreted as customarily or
habitually holding one's self out to the public as a lawyer and demanding payment for such services (State vs.
Bryan, 4 S.E. 522, 98 N.C. 644,647.) ... (emphasis supplied).
It is worth mentioning that the respondent Commission on Appointments in a Memorandum it prepared, enumerated several
factors determinative of whether a particular activity constitutes "practice of law." It states:
1. Habituality. The term "practice of law" implies customarily or habitually holding one's self out to the public as
a lawyer (People vs. Villanueva, 14 SCRA 109 citing State v. Boyen, 4 S.E. 522, 98 N.C. 644) such as when
one sends a circular announcing the establishment of a law office for the general practice of law (U.S. v. Ney
Bosque, 8 Phil. 146), or when one takes the oath of office as a lawyer before a notary public, and files a
manifestation with the Supreme Court informing it of his intention to practice law in all courts in the country
(People v. De Luna, 102 Phil. 968).
Practice is more than an isolated appearance for it consists in frequent or customary action, a succession of
acts of the same kind. In other words, it is a habitual exercise (People v. Villanueva, 14 SCRA 109 citing State
v. Cotner, 127, p. 1, 87 Kan, 864).
2. Compensation. Practice of law implies that one must have presented himself to be in the active and
continued practice of the legal profession and that his professional services are available to the public for
compensation, as a service of his livelihood or in consideration of his said services. (People v. Villanueva,
supra). Hence, charging for services such as preparation of documents involving the use of legal knowledge
and skill is within the term "practice of law" (Ernani Pao, Bar Reviewer in Legal and Judicial Ethics, 1988 ed.,
p. 8 citing People v. People's Stockyards State Bank, 176 N.B. 901) and, one who renders an opinion as to the
proper interpretation of a statute, and receives pay for it, is to that extent, practicing law (Martin, supra, p. 806
citing Mendelaun v. Gilbert and Barket Mfg. Co., 290 N.Y.S. 462) If compensation is expected, all advice to
clients and all action taken for them in matters connected with the law; are practicing law. (Elwood Fitchette et
al., v. Arthur C. Taylor, 94A-L.R. 356-359)
3. Application of law legal principle practice or procedure which calls for legal knowledge, training and
experience is within the term "practice of law". (Martin supra)
4. Attorney-client relationship. Engaging in the practice of law presupposes the existence of lawyer-client
relationship. Hence, where a lawyer undertakes an activity which requires knowledge of law but involves no
attorney-client relationship, such as teaching law or writing law books or articles, he cannot be said to be
engaged in the practice of his profession or a lawyer (Agpalo, Legal Ethics, 1989 ed., p. 30). 3
The above-enumerated factors would, I believe, be useful aids in determining whether or not respondent Monsod meets the
constitutional qualification of practice of law for at least ten (10) years at the time of his appointment as COMELEC Chairman.
The following relevant questions may be asked:
1. Did respondent Monsod perform any of the tasks which are peculiar to the practice of law?
2. Did respondent perform such tasks customarily or habitually?

15

3. Assuming that he performed any of such tasks habitually, did he do so HABITUALLY FOR AT LEAST TEN (10) YEARS prior
to his appointment as COMELEC Chairman?
Given the employment or job history of respondent Monsod as appears from the records, I am persuaded that if ever he did
perform any of the tasks which constitute the practice of law, he did not do so HABITUALLY for at least ten (10) years prior to his
appointment as COMELEC Chairman.
While it may be granted that he performed tasks and activities which could be latitudinarianly considered activities peculiar to the
practice of law, like the drafting of legal documents and the rendering of legal opinion or advice, such were isolated transactions
or activities which do not qualify his past endeavors as "practice of law." To become engaged in the practice of law, there must
be a continuity, or a succession of acts. As observed by the Solicitor General in People vs. Villanueva: 4
Essentially, the word private practice of law implies that one must have presented himself to be in
theactive and continued practice of the legal profession and that his professional services are available to the
public for a compensation, as a source of his livelihood or in consideration of his said services.
ACCORDINGLY, my vote is to GRANT the petition and to declare respondent Monsod as not qualified for the position of
COMELEC Chairman for not having engaged in the practice of law for at least ten (10) years prior to his appointment to such
position.
CRUZ, J., dissenting:
I am sincerely impressed by the ponencia of my brother Paras but find I must dissent just the same. There are certain points on
which I must differ with him while of course respecting hisviewpoint.
To begin with, I do not think we are inhibited from examining the qualifications of the respondent simply because his nomination
has been confirmed by the Commission on Appointments. In my view, this is not a political question that we are barred from
resolving. Determination of the appointee's credentials is made on the basis of the established facts, not the discretion of that
body. Even if it were, the exercise of that discretion would still be subject to our review.
In Luego, which is cited in the ponencia, what was involved was the discretion of the appointing authority tochoose between two
claimants to the same office who both possessed the required qualifications. It was that kind of discretion that we said could not
be reviewed.
If a person elected by no less than the sovereign people may be ousted by this Court for lack of the required qualifications, I see
no reason why we cannot disqualified an appointee simply because he has passed the Commission on Appointments.
Even the President of the Philippines may be declared ineligible by this Court in an appropriate proceeding notwithstanding that
he has been found acceptable by no less than the enfranchised citizenry. The reason is that what we would be examining is not
the wisdom of his election but whether or not he was qualified to be elected in the first place.
Coming now to the qualifications of the private respondent, I fear that the ponencia may have been too sweeping in its definition
of the phrase "practice of law" as to render the qualification practically toothless. From the numerous activities accepted as
embraced in the term, I have the uncomfortable feeling that one does not even have to be a lawyer to be engaged in the practice
of law as long as his activities involve the application of some law, however peripherally. The stock broker and the insurance
adjuster and the realtor could come under the definition as they deal with or give advice on matters that are likely "to become
involved in litigation."
The lawyer is considered engaged in the practice of law even if his main occupation is another business and he interprets and
applies some law only as an incident of such business. That covers every company organized under the Corporation Code and
regulated by the SEC under P.D. 902-A. Considering the ramifications of the modern society, there is hardly any activity that is
not affected by some law or government regulation the businessman must know about and observe. In fact, again going by the
definition, a lawyer does not even have to be part of a business concern to be considered a practitioner. He can be so deemed
when, on his own, he rents a house or buys a car or consults a doctor as these acts involve his knowledge and application of the

16

laws regulating such transactions. If he operates a public utility vehicle as his main source of livelihood, he would still be deemed
engaged in the practice of law because he must obey the Public Service Act and the rules and regulations of the Energy
Regulatory Board.
The ponencia quotes an American decision defining the practice of law as the "performance of any acts ... in or out of court,
commonly understood to be the practice of law," which tells us absolutely nothing. The decision goes on to say that "because
lawyers perform almost every function known in the commercial and governmental realm, such a definition would obviously be
too global to be workable."
The effect of the definition given in the ponencia is to consider virtually every lawyer to be engaged in the practice of law even if
he does not earn his living, or at least part of it, as a lawyer. It is enough that his activities are incidentally (even if only remotely)
connected with some law, ordinance, or regulation. The possible exception is the lawyer whose income is derived from teaching
ballroom dancing or escorting wrinkled ladies with pubescent pretensions.
The respondent's credentials are impressive, to be sure, but they do not persuade me that he has been engaged in the practice
of law for ten years as required by the Constitution. It is conceded that he has been engaged in business and finance, in which
areas he has distinguished himself, but as an executive and economist and not as a practicing lawyer. The plain fact is that he
has occupied the various positions listed in his resume by virtue of his experience and prestige as a businessman and not as an
attorney-at-law whose principal attention is focused on the law. Even if it be argued that he was acting as a lawyer when he
lobbied in Congress for agrarian and urban reform, served in the NAMFREL and the Constitutional Commission (together with
non-lawyers like farmers and priests) and was a member of the Davide Commission, he has not proved that his activities in
these capacities extended over the prescribed 10-year period of actual practice of the law. He is doubtless eminently qualified
for many other positions worthy of his abundant talents but not as Chairman of the Commission on Elections.
I have much admiration for respondent Monsod, no less than for Mr. Justice Paras, but I must regretfully vote to grant the
petition.
GUTIERREZ, JR., J., dissenting:
When this petition was filed, there was hope that engaging in the practice of law as a qualification for public office would be
settled one way or another in fairly definitive terms. Unfortunately, this was not the result.
Of the fourteen (14) member Court, 5 are of the view that Mr. Christian Monsod engaged in the practice of law (with one of these
5 leaving his vote behind while on official leave but not expressing his clear stand on the matter); 4 categorically stating that he
did not practice law; 2 voting in the result because there was no error so gross as to amount to grave abuse of discretion; one of
official leave with no instructions left behind on how he viewed the issue; and 2 not taking part in the deliberations and the
decision.
There are two key factors that make our task difficult. First is our reviewing the work of a constitutional Commission on
Appointments whose duty is precisely to look into the qualifications of persons appointed to high office. Even if the Commission
errs, we have no power to set aside error. We can look only into grave abuse of discretion or whimsically and arbitrariness.
Second is our belief that Mr. Monsod possesses superior qualifications in terms of executive ability, proficiency in management,
educational background, experience in international banking and finance, and instant recognition by the public. His integrity and
competence are not questioned by the petitioner. What is before us is compliance with a specific requirement written into the
Constitution.
Inspite of my high regard for Mr. Monsod, I cannot shirk my constitutional duty. He has never engaged in the practice of law for
even one year. He is a member of the bar but to say that he has practiced law is stretching the term beyond rational limits.
A person may have passed the bar examinations. But if he has not dedicated his life to the law, if he has not engaged in an
activity where membership in the bar is a requirement I fail to see how he can claim to have been engaged in the practice of law.
Engaging in the practice of law is a qualification not only for COMELEC chairman but also for appointment to the Supreme Court
and all lower courts. What kind of Judges or Justices will we have if there main occupation is selling real estate, managing a

17

business corporation, serving in fact-finding committee, working in media, or operating a farm with no active involvement in the
law, whether in Government or private practice, except that in one joyful moment in the distant past, they happened to pass the
bar examinations?
The Constitution uses the phrase "engaged in the practice of law for at least ten years." The deliberate choice of words shows
that the practice envisioned is active and regular, not isolated, occasional, accidental, intermittent, incidental, seasonal, or
extemporaneous. To be "engaged" in an activity for ten years requires committed participation in something which is the result of
one's decisive choice. It means that one is occupied and involved in the enterprise; one is obliged or pledged to carry it out with
intent and attention during the ten-year period.
I agree with the petitioner that based on the bio-data submitted by respondent Monsod to the Commission on Appointments, the
latter has not been engaged in the practice of law for at least ten years. In fact, if appears that Mr. Monsod has never practiced
law except for an alleged one year period after passing the bar examinations when he worked in his father's law firm. Even then
his law practice must have been extremely limited because he was also working for M.A. and Ph. D. degrees in Economics at
the University of Pennsylvania during that period. How could he practice law in the United States while not a member of the Bar
there?
The professional life of the respondent follows:
1.15.1. Respondent Monsod's activities since his passing the Bar examinations in 1961 consist of the following:
1. 1961-1963: M.A. in Economics (Ph. D. candidate), University of Pennsylvania
2. 1963-1970: World Bank Group Economist, Industry Department; Operations, Latin American Department;
Division Chief, South Asia and Middle East, International Finance Corporation
3. 1970-1973: Meralco Group Executive of various companies, i.e., Meralco Securities Corporation,
Philippine Petroleum Corporation, Philippine Electric Corporation
4. 1973-1976: Yujuico Group President, Fil-Capital Development Corporation and affiliated companies
5. 1976-1978: Finaciera Manila Chief Executive Officer
6. 1978-1986: Guevent Group of Companies Chief Executive Officer
7. 1986-1987: Philippine Constitutional Commission Member
8. 1989-1991: The Fact-Finding Commission on the December 1989 Coup Attempt Member
9. Presently: Chairman of the Board and Chief Executive Officer of the following companies:
a. ACE Container Philippines, Inc.
b. Dataprep, Philippines
c. Philippine SUNsystems Products, Inc.
d. Semirara Coal Corporation
e. CBL Timber Corporation
Member of the Board of the Following:

18

a. Engineering Construction Corporation of the Philippines

b. First Philippine Energy Corporation
c. First Philippine Holdings Corporation
d. First Philippine Industrial Corporation
e. Graphic Atelier
f. Manila Electric Company
g. Philippine Commercial Capital, Inc.
h. Philippine Electric Corporation
i. Tarlac Reforestation and Environment Enterprises
j. Tolong Aquaculture Corporation
k. Visayan Aquaculture Corporation
l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22)
There is nothing in the above bio-data which even remotely indicates that respondent Monsod has given the lawenough
attention or a certain degree of commitment and participation as would support in all sincerity and candor the claim of having
engaged in its practice for at least ten years. Instead of working as a lawyer, he has lawyers working for him. Instead of giving
receiving that legal advice of legal services, he was the oneadvice and those services as an executive but not as a lawyer.
The deliberations before the Commission on Appointments show an effort to equate "engaged in the practice of law" with the use
of legal knowledge in various fields of endeavor such as commerce, industry, civic work, blue ribbon investigations, agrarian
reform, etc. where such knowledge would be helpful.
I regret that I cannot join in playing fast and loose with a term, which even an ordinary layman accepts as having a familiar and
customary well-defined meaning. Every resident of this country who has reached the age of discernment has to know, follow, or
apply the law at various times in his life. Legal knowledge is useful if not necessary for the business executive, legislator, mayor,
barangay captain, teacher, policeman, farmer, fisherman, market vendor, and student to name only a few. And yet, can these
people honestly assert that as such, they are engaged in the practice of law?
The Constitution requires having been "engaged in the practice of law for at least ten years." It is not satisfied with having been
"a member of the Philippine bar for at least ten years."
Some American courts have defined the practice of law, as follows:
The practice of law involves not only appearance in court in connection with litigation but also services
rendered out of court, and it includes the giving of advice or the rendering of any services requiring the use of
legal skill or knowledge, such as preparing a will, contract or other instrument, the legal effect of which, under
the facts and conditions involved, must be carefully determined.People ex rel. Chicago Bar Ass'n v. Tinkoff, 399
Ill. 282, 77 N.E.2d 693; People ex rel. Illinois State Bar Ass'n v. People's Stock Yards State Bank, 344 Ill.
462,176 N.E. 901, and cases cited.
It would be difficult, if not impossible to lay down a formula or definition of what constitutes the practice of law.
"Practicing law" has been defined as "Practicing as an attorney or counselor at law according to the laws and

19

customs of our courts, is the giving of advice or rendition of any sort of service by any person, firm or
corporation when the giving of such advice or rendition of such service requires the use of any degree of legal
knowledge or skill." Without adopting that definition, we referred to it as being substantially correct in People ex
rel. Illinois State Bar Ass'n v. People's Stock Yards State Bank, 344 Ill. 462,176 N.E. 901. (People v. Schafer, 87
N.E. 2d 773, 776)
For one's actions to come within the purview of practice of law they should not only be activities peculiar to the work of a lawyer,
they should also be performed, habitually, frequently or customarily, to wit:
xxx xxx xxx
Respondent's answers to questions propounded to him were rather evasive. He was asked whether or not he
ever prepared contracts for the parties in real-estate transactions where he was not the procuring agent. He
answered: "Very seldom." In answer to the question as to how many times he had prepared contracts for the
parties during the twenty-one years of his business, he said: "I have no Idea." When asked if it would be more
than half a dozen times his answer was I suppose. Asked if he did not recall making the statement to several
parties that he had prepared contracts in a large number of instances, he answered: "I don't recall exactly what
was said." When asked if he did not remember saying that he had made a practice of preparing deeds,
mortgages and contracts and charging a fee to the parties therefor in instances where he was not the broker in
the deal, he answered: "Well, I don't believe so, that is not a practice." Pressed further for an answer as to his
practice in preparing contracts and deeds for parties where he was not the broker, he finally answered: "I have
done about everything that is on the books as far as real estate is concerned."
xxx xxx xxx
Respondent takes the position that because he is a real-estate broker he has a lawful right to do any legal work
in connection with real-estate transactions, especially in drawing of real-estate contracts, deeds, mortgages,
notes and the like. There is no doubt but that he has engaged in these practices over the years and has
charged for his services in that connection. ... (People v. Schafer, 87 N.E. 2d 773)
xxx xxx xxx
... An attorney, in the most general sense, is a person designated or employed by another to act in his stead; an
agent; more especially, one of a class of persons authorized to appear and act for suitors or defendants in legal
proceedings. Strictly, these professional persons are attorneys at law, and non-professional agents are properly
styled "attorney's in fact;" but the single word is much used as meaning an attorney at law. A person may be an
attorney in facto for another, without being an attorney at law. Abb. Law Dict. "Attorney." A public attorney, or
attorney at law, says Webster, is an officer of a court of law, legally qualified to prosecute and defend actions in
such court on the retainerof clients. "The principal duties of an attorney are (1) to be true to the court and to his
client; (2) to manage the business of his client with care, skill, and integrity; (3) to keep his client informed as to
the state of his business; (4) to keep his secrets confided to him as such. ... His rights are to be justly
compensated for his services." Bouv. Law Dict. tit. "Attorney." The transitive verb "practice," as defined by
Webster, means 'to do or perform frequently, customarily, or habitually; to perform by a succession of acts, as,
to practice gaming, ... to carry on in practice, or repeated action; to apply, as a theory, to real life; to exercise,
as a profession, trade, art. etc.; as, to practice law or medicine,' etc...." (State v. Bryan, S.E. 522, 523;
Emphasis supplied)
In this jurisdiction, we have ruled that the practice of law denotes frequency or a succession of acts. Thus, we stated in the case
of People v. Villanueva (14 SCRA 109 [1965]):
xxx xxx xxx
... Practice is more than an isolated appearance, for it consists in frequent or customary actions, a succession of acts of the
same kind. In other words, it is frequent habitual exercise (State v. Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice

20

of law to fall within the prohibition of statute has been interpreted as customarily or habitually holding one's self out to the public,
as a lawyer and demanding payment for such services. ... . (at p. 112)
It is to be noted that the Commission on Appointment itself recognizes habituality as a required component of the meaning of
practice of law in a Memorandum prepared and issued by it, to wit:
l. Habituality. The term 'practice of law' implies customarilyor habitually holding one's self out to the public as a
lawyer (People v. Villanueva, 14 SCRA 109 citing State v. Bryan, 4 S.E. 522, 98 N.C. 644) such as when one
sends a circular announcing the establishment of a law office for the general practice of law (U.S. v. Noy
Bosque, 8 Phil. 146), or when one takes the oath of office as a lawyer before a notary public, and files a
manifestation with the Supreme Court informing it of his intention to practice law in all courts in the country
(People v. De Luna, 102 Phil. 968).
Practice is more than an isolated appearance, for it consists in frequent or customary action, a succession of
acts of the same kind. In other words, it is a habitual exercise (People v. Villanueva, 14 SCRA 1 09 citing State
v. Cotner, 1 27, p. 1, 87 Kan, 864)." (Rollo, p. 115)
xxx xxx xxx
While the career as a businessman of respondent Monsod may have profited from his legal knowledge, the use of such legal
knowledge is incidental and consists of isolated activities which do not fall under the denomination of practice of law. Admission
to the practice of law was not required for membership in the Constitutional Commission or in the Fact-Finding Commission on
the 1989 Coup Attempt. Any specific legal activities which may have been assigned to Mr. Monsod while a member may be
likened to isolated transactions of foreign corporations in the Philippines which do not categorize the foreign corporations as
doing business in the Philippines. As in the practice of law, doing business also should be active and continuous. Isolated
business transactions or occasional, incidental and casual transactions are not within the context of doing business. This was
our ruling in the case of Antam Consolidated, Inc. v. Court of appeals, 143 SCRA 288 [1986]).
Respondent Monsod, corporate executive, civic leader, and member of the Constitutional Commission may possess the
background, competence, integrity, and dedication, to qualify for such high offices as President, Vice-President, Senator,
Congressman or Governor but the Constitution in prescribing the specific qualification of having engaged in the practice of law
for at least ten (10) years for the position of COMELEC Chairman has ordered that he may not be confirmed for that office. The
Constitution charges the public respondents no less than this Court to obey its mandate.
I, therefore, believe that the Commission on Appointments committed grave abuse of discretion in confirming the nomination of
respondent Monsod as Chairman of the COMELEC.
I vote to GRANT the petition.
Bidin, J., dissent

Separate Opinions
NARVASA, J., concurring:
I concur with the decision of the majority written by Mr. Justice Paras, albeit only in the result; it does not appear to me that there
has been an adequate showing that the challenged determination by the Commission on Appointments-that the appointment of
respondent Monsod as Chairman of the Commission on Elections should, on the basis of his stated qualifications and after due
assessment thereof, be confirmed-was attended by error so gross as to amount to grave abuse of discretion and consequently
merits nullification by this Court in accordance with the second paragraph of Section 1, Article VIII of the Constitution. I therefore
vote to DENY the petition.

21

Melencio-Herrera, J., concur.

PADILLA, J., dissenting:
The records of this case will show that when the Court first deliberated on the Petition at bar, I voted not only to require the
respondents to comment on the Petition, but I was the sole vote for the issuance of a temporary restraining order to enjoin
respondent Monsod from assuming the position of COMELEC Chairman, while the Court deliberated on his constitutional
qualification for the office. My purpose in voting for a TRO was to prevent the inconvenience and even embarrassment to all
parties concerned were the Court to finally decide for respondent Monsod's disqualification. Moreover, a reading of the Petition
then in relation to established jurisprudence already showed prima facie that respondent Monsod did not possess the needed
qualification, that is, he had not engaged in the practice of law for at least ten (10) years prior to his appointment as COMELEC
Chairman.
After considering carefully respondent Monsod's comment, I am even more convinced that the constitutional requirement of
"practice of law for at least ten (10) years" has not been met.
The procedural barriers interposed by respondents deserve scant consideration because, ultimately, the core issue to be
resolved in this petition is the proper construal of the constitutional provision requiring a majority of the membership of
COMELEC, including the Chairman thereof to "have been engaged in the practice of law for at least ten (10) years." (Art. IX(C),
Section 1(1), 1987 Constitution). Questions involving the construction of constitutional provisions are best left to judicial
resolution. As declared in Angara v. Electoral Commission, (63 Phil. 139) "upon the judicial department is thrown the solemn and
inescapable obligation of interpreting the Constitution and defining constitutional boundaries."
The Constitution has imposed clear and specific standards for a COMELEC Chairman. Among these are that he must have
been "engaged in the practice of law for at least ten (10) years." It is the bounden duty of this Court to ensure that such standard
is met and complied with.
What constitutes practice of law? As commonly understood, "practice" refers to the actual performance or application of
knowledge as distinguished from mere possession of knowledge; it connotes an active, habitual,repeated or customary
action. 1 To "practice" law, or any profession for that matter, means, to exercise or pursue an employment or profession actively,
habitually, repeatedly or customarily.
Therefore, a doctor of medicine who is employed and is habitually performing the tasks of a nursing aide, cannot be said to be in
the "practice of medicine." A certified public accountant who works as a clerk, cannot be said to practice his profession as an
accountant. In the same way, a lawyer who is employed as a business executive or a corporate manager, other than as head or
attorney of a Legal Department of a corporation or a governmental agency, cannot be said to be in the practice of law.
As aptly held by this Court in the case of People vs. Villanueva: 2
Practice is more than an isolated appearance for it consists in frequent or customary actions, a succession of
acts of the same kind. In other words, it is frequent habitual exercise (State vs- Cotner, 127, p. 1, 87 Kan. 864,
42 LRA, M.S. 768). Practice of law to fall within the prohibition of statute has been interpreted as customarily or
habitually holding one's self out to the public as a lawyer and demanding payment for such services (State vs.
Bryan, 4 S.E. 522, 98 N.C. 644,647.) ... (emphasis supplied).
It is worth mentioning that the respondent Commission on Appointments in a Memorandum it prepared, enumerated several
factors determinative of whether a particular activity constitutes "practice of law." It states:
1. Habituality. The term "practice of law" implies customarily or habitually holding one's self out to the public as
a lawyer (People vs. Villanueva, 14 SCRA 109 citing State v. Boyen, 4 S.E. 522, 98 N.C. 644) such as when
one sends a circular announcing the establishment of a law office for the general practice of law (U.S. v. Ney
Bosque, 8 Phil. 146), or when one takes the oath of office as a lawyer before a notary public, and files a
manifestation with the Supreme Court informing it of his intention to practice law in all courts in the country
(People v. De Luna, 102 Phil. 968).

22

Practice is more than an isolated appearance for it consists in frequent or customary action, a succession of
acts of the same kind. In other words, it is a habitual exercise (People v. Villanueva, 14 SCRA 109 citing State
v. Cotner, 127, p. 1, 87 Kan, 864).
2. Compensation. Practice of law implies that one must have presented himself to be in the active and
continued practice of the legal profession and that his professional services are available to the public for
compensation, as a service of his livelihood or in consideration of his said services. (People v. Villanueva,
supra). Hence, charging for services such as preparation of documents involving the use of legal knowledge
and skill is within the term "practice of law" (Ernani Pao, Bar Reviewer in Legal and Judicial Ethics, 1988 ed.,
p. 8 citing People v. People's Stockyards State Bank, 176 N.B. 901) and, one who renders an opinion as to the
proper interpretation of a statute, and receives pay for it, is to that extent, practicing law (Martin, supra, p. 806
citing Mendelaun v. Gilbert and Barket Mfg. Co., 290 N.Y.S. 462) If compensation is expected, all advice to
clients and all action taken for them in matters connected with the law; are practicing law. (Elwood Fitchette et
al., v. Arthur C. Taylor, 94A-L.R. 356-359)
3. Application of law legal principle practice or procedure which calls for legal knowledge, training and
experience is within the term "practice of law". (Martin supra)
4. Attorney-client relationship. Engaging in the practice of law presupposes the existence of lawyer-client
relationship. Hence, where a lawyer undertakes an activity which requires knowledge of law but involves no
attorney-client relationship, such as teaching law or writing law books or articles, he cannot be said to be
engaged in the practice of his profession or a lawyer (Agpalo, Legal Ethics, 1989 ed., p. 30). 3
The above-enumerated factors would, I believe, be useful aids in determining whether or not respondent Monsod meets the
constitutional qualification of practice of law for at least ten (10) years at the time of his appointment as COMELEC Chairman.
The following relevant questions may be asked:
1. Did respondent Monsod perform any of the tasks which are peculiar to the practice of law?
2. Did respondent perform such tasks customarily or habitually?
3. Assuming that he performed any of such tasks habitually, did he do so HABITUALLY FOR AT LEAST TEN (10) YEARS prior
to his appointment as COMELEC Chairman?
Given the employment or job history of respondent Monsod as appears from the records, I am persuaded that if ever he did
perform any of the tasks which constitute the practice of law, he did not do so HABITUALLY for at least ten (10) years prior to his
appointment as COMELEC Chairman.
While it may be granted that he performed tasks and activities which could be latitudinarianly considered activities peculiar to the
practice of law, like the drafting of legal documents and the rendering of legal opinion or advice, such were isolated transactions
or activities which do not qualify his past endeavors as "practice of law." To become engaged in the practice of law, there must
be a continuity, or a succession of acts. As observed by the Solicitor General in People vs. Villanueva: 4
Essentially, the word private practice of law implies that one must have presented himself to be in
theactive and continued practice of the legal profession and that his professional services are available to the
public for a compensation, as a source of his livelihood or in consideration of his said services.
ACCORDINGLY, my vote is to GRANT the petition and to declare respondent Monsod as not qualified for the position of
COMELEC Chairman for not having engaged in the practice of law for at least ten (10) years prior to his appointment to such
position.
CRUZ, J., dissenting:

23

I am sincerely impressed by the ponencia of my brother Paras but find I must dissent just the same. There are certain points on
which I must differ with him while of course respecting hisviewpoint.
To begin with, I do not think we are inhibited from examining the qualifications of the respondent simply because his nomination
has been confirmed by the Commission on Appointments. In my view, this is not a political question that we are barred from
resolving. Determination of the appointee's credentials is made on the basis of the established facts, not the discretion of that
body. Even if it were, the exercise of that discretion would still be subject to our review.
In Luego, which is cited in the ponencia, what was involved was the discretion of the appointing authority tochoose between two
claimants to the same office who both possessed the required qualifications. It was that kind of discretion that we said could not
be reviewed.
If a person elected by no less than the sovereign people may be ousted by this Court for lack of the required qualifications, I see
no reason why we cannot disqualified an appointee simply because he has passed the Commission on Appointments.
Even the President of the Philippines may be declared ineligible by this Court in an appropriate proceeding notwithstanding that
he has been found acceptable by no less than the enfranchised citizenry. The reason is that what we would be examining is not
the wisdom of his election but whether or not he was qualified to be elected in the first place.
Coming now to the qualifications of the private respondent, I fear that the ponencia may have been too sweeping in its definition
of the phrase "practice of law" as to render the qualification practically toothless. From the numerous activities accepted as
embraced in the term, I have the uncomfortable feeling that one does not even have to be a lawyer to be engaged in the practice
of law as long as his activities involve the application of some law, however peripherally. The stock broker and the insurance
adjuster and the realtor could come under the definition as they deal with or give advice on matters that are likely "to become
involved in litigation."
The lawyer is considered engaged in the practice of law even if his main occupation is another business and he interprets and
applies some law only as an incident of such business. That covers every company organized under the Corporation Code and
regulated by the SEC under P.D. 902-A. Considering the ramifications of the modern society, there is hardly any activity that is
not affected by some law or government regulation the businessman must know about and observe. In fact, again going by the
definition, a lawyer does not even have to be part of a business concern to be considered a practitioner. He can be so deemed
when, on his own, he rents a house or buys a car or consults a doctor as these acts involve his knowledge and application of the
laws regulating such transactions. If he operates a public utility vehicle as his main source of livelihood, he would still be deemed
engaged in the practice of law because he must obey the Public Service Act and the rules and regulations of the Energy
Regulatory Board.
The ponencia quotes an American decision defining the practice of law as the "performance of any acts . . . in or out of court,
commonly understood to be the practice of law," which tells us absolutely nothing. The decision goes on to say that "because
lawyers perform almost every function known in the commercial and governmental realm, such a definition would obviously be
too global to be workable."
The effect of the definition given in the ponencia is to consider virtually every lawyer to be engaged in the practice of law even if
he does not earn his living, or at least part of it, as a lawyer. It is enough that his activities are incidentally (even if only remotely)
connected with some law, ordinance, or regulation. The possible exception is the lawyer whose income is derived from teaching
ballroom dancing or escorting wrinkled ladies with pubescent pretensions.
The respondent's credentials are impressive, to be sure, but they do not persuade me that he has been engaged in the practice
of law for ten years as required by the Constitution. It is conceded that he has been engaged in business and finance, in which
areas he has distinguished himself, but as an executive and economist and not as a practicing lawyer. The plain fact is that he
has occupied the various positions listed in his resume by virtue of his experience and prestige as a businessman and not as an
attorney-at-law whose principal attention is focused on the law. Even if it be argued that he was acting as a lawyer when he
lobbied in Congress for agrarian and urban reform, served in the NAMFREL and the Constitutional Commission (together with
non-lawyers like farmers and priests) and was a member of the Davide Commission, he has not proved that his activities in

24

these capacities extended over the prescribed 10-year period of actual practice of the law. He is doubtless eminently qualified
for many other positions worthy of his abundant talents but not as Chairman of the Commission on Elections.
I have much admiration for respondent Monsod, no less than for Mr. Justice Paras, but I must regretfully vote to grant the
petition.
GUTIERREZ, JR., J., dissenting:
When this petition was filed, there was hope that engaging in the practice of law as a qualification for public office would be
settled one way or another in fairly definitive terms. Unfortunately, this was not the result.
Of the fourteen (14) member Court, 5 are of the view that Mr. Christian Monsod engaged in the practice of law (with one of these
5 leaving his vote behind while on official leave but not expressing his clear stand on the matter); 4 categorically stating that he
did not practice law; 2 voting in the result because there was no error so gross as to amount to grave abuse of discretion; one of
official leave with no instructions left behind on how he viewed the issue; and 2 not taking part in the deliberations and the
decision.
There are two key factors that make our task difficult. First is our reviewing the work of a constitutional Commission on
Appointments whose duty is precisely to look into the qualifications of persons appointed to high office. Even if the Commission
errs, we have no power to set aside error. We can look only into grave abuse of discretion or whimsically and arbitrariness.
Second is our belief that Mr. Monsod possesses superior qualifications in terms of executive ability, proficiency in management,
educational background, experience in international banking and finance, and instant recognition by the public. His integrity and
competence are not questioned by the petitioner. What is before us is compliance with a specific requirement written into the
Constitution.
Inspite of my high regard for Mr. Monsod, I cannot shirk my constitutional duty. He has never engaged in the practice of law for
even one year. He is a member of the bar but to say that he has practiced law is stretching the term beyond rational limits.
A person may have passed the bar examinations. But if he has not dedicated his life to the law, if he has not engaged in an
activity where membership in the bar is a requirement I fail to see how he can claim to have been engaged in the practice of law.
Engaging in the practice of law is a qualification not only for COMELEC chairman but also for appointment to the Supreme Court
and all lower courts. What kind of Judges or Justices will we have if there main occupation is selling real estate, managing a
business corporation, serving in fact-finding committee, working in media, or operating a farm with no active involvement in the
law, whether in Government or private practice, except that in one joyful moment in the distant past, they happened to pass the
bar examinations?
The Constitution uses the phrase "engaged in the practice of law for at least ten years." The deliberate choice of words shows
that the practice envisioned is active and regular, not isolated, occasional, accidental, intermittent, incidental, seasonal, or
extemporaneous. To be "engaged" in an activity for ten years requires committed participation in something which is the result of
one's decisive choice. It means that one is occupied and involved in the enterprise; one is obliged or pledged to carry it out with
intent and attention during the ten-year period.
I agree with the petitioner that based on the bio-data submitted by respondent Monsod to the Commission on Appointments, the
latter has not been engaged in the practice of law for at least ten years. In fact, if appears that Mr. Monsod has never practiced
law except for an alleged one year period after passing the bar examinations when he worked in his father's law firm. Even then
his law practice must have been extremely limited because he was also working for M.A. and Ph. D. degrees in Economics at
the University of Pennsylvania during that period. How could he practice law in the United States while not a member of the Bar
there?
The professional life of the respondent follows:
1.15.1. Respondent Monsod's activities since his passing the Bar examinations in 1961 consist of the following:

25

1. 1961-1963: M.A. in Economics (Ph. D. candidate), University of Pennsylvania

2. 1963-1970: World Bank Group Economist, Industry Department; Operations, Latin American Department;
Division Chief, South Asia and Middle East, International Finance Corporation
3. 1970-1973: Meralco Group Executive of various companies, i.e., Meralco Securities Corporation,
Philippine Petroleum Corporation, Philippine Electric Corporation
4. 1973-1976: Yujuico Group President, Fil-Capital Development Corporation and affiliated companies
5. 1976-1978: Finaciera Manila Chief Executive Officer
6. 1978-1986: Guevent Group of Companies Chief Executive Officer
7. 1986-1987: Philippine Constitutional Commission Member
8. 1989-1991: The Fact-Finding Commission on the December 1989 Coup Attempt Member
9. Presently: Chairman of the Board and Chief Executive Officer of the following companies:
a. ACE Container Philippines, Inc.
b. Dataprep, Philippines
c. Philippine SUNsystems Products, Inc.
d. Semirara Coal Corporation
e. CBL Timber Corporation
Member of the Board of the Following:
a. Engineering Construction Corporation of the Philippines
b. First Philippine Energy Corporation
c. First Philippine Holdings Corporation
d. First Philippine Industrial Corporation
e. Graphic Atelier
f. Manila Electric Company
g. Philippine Commercial Capital, Inc.
h. Philippine Electric Corporation
i. Tarlac Reforestation and Environment Enterprises
j. Tolong Aquaculture Corporation

26

k. Visayan Aquaculture Corporation

l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22)
There is nothing in the above bio-data which even remotely indicates that respondent Monsod has given the lawenough
attention or a certain degree of commitment and participation as would support in all sincerity and candor the claim of having
engaged in its practice for at least ten years. Instead of working as a lawyer, he has lawyers working for him. Instead of giving
receiving that legal advice of legal services, he was the oneadvice and those services as an executive but not as a lawyer.
The deliberations before the Commission on Appointments show an effort to equate "engaged in the practice of law" with the use
of legal knowledge in various fields of endeavor such as commerce, industry, civic work, blue ribbon investigations, agrarian
reform, etc. where such knowledge would be helpful.
I regret that I cannot join in playing fast and loose with a term, which even an ordinary layman accepts as having a familiar and
customary well-defined meaning. Every resident of this country who has reached the age of discernment has to know, follow, or
apply the law at various times in his life. Legal knowledge is useful if not necessary for the business executive, legislator, mayor,
barangay captain, teacher, policeman, farmer, fisherman, market vendor, and student to name only a few. And yet, can these
people honestly assert that as such, they are engaged in the practice of law?
The Constitution requires having been "engaged in the practice of law for at least ten years." It is not satisfied with having been
"a member of the Philippine bar for at least ten years."
Some American courts have defined the practice of law, as follows:
The practice of law involves not only appearance in court in connection with litigation but also services
rendered out of court, and it includes the giving of advice or the rendering of any services requiring the use of
legal skill or knowledge, such as preparing a will, contract or other instrument, the legal effect of which, under
the facts and conditions involved, must be carefully determined.People ex rel. Chicago Bar Ass'n v. Tinkoff, 399
Ill. 282, 77 N.E.2d 693; People ex rel. Illinois State Bar Ass'n v. People's Stock Yards State Bank, 344 Ill.
462,176 N.E. 901, and cases cited.
It would be difficult, if not impossible to lay down a formula or definition of what constitutes the practice of law.
"Practicing law" has been defined as "Practicing as an attorney or counselor at law according to the laws and
customs of our courts, is the giving of advice or rendition of any sort of service by any person, firm or
corporation when the giving of such advice or rendition of such service requires the use of any degree of legal
knowledge or skill." Without adopting that definition, we referred to it as being substantially correct in People ex
rel. Illinois State Bar Ass'n v. People's Stock Yards State Bank, 344 Ill. 462,176 N.E. 901. (People v. Schafer, 87
N.E. 2d 773, 776)
For one's actions to come within the purview of practice of law they should not only be activities peculiar to the work of a lawyer,
they should also be performed, habitually, frequently or customarily, to wit:
xxx xxx xxx
Respondent's answers to questions propounded to him were rather evasive. He was asked whether or not he
ever prepared contracts for the parties in real-estate transactions where he was not the procuring agent. He
answered: "Very seldom." In answer to the question as to how many times he had prepared contracts for the
parties during the twenty-one years of his business, he said: "I have no Idea." When asked if it would be more
than half a dozen times his answer was I suppose. Asked if he did not recall making the statement to several
parties that he had prepared contracts in a large number of instances, he answered: "I don't recall exactly what
was said." When asked if he did not remember saying that he had made a practice of preparing deeds,
mortgages and contracts and charging a fee to the parties therefor in instances where he was not the broker in
the deal, he answered: "Well, I don't believe so, that is not a practice." Pressed further for an answer as to his

27

practice in preparing contracts and deeds for parties where he was not the broker, he finally answered: "I have
done about everything that is on the books as far as real estate is concerned."
xxx xxx xxx
Respondent takes the position that because he is a real-estate broker he has a lawful right to do any legal work
in connection with real-estate transactions, especially in drawing of real-estate contracts, deeds, mortgages,
notes and the like. There is no doubt but that he has engaged in these practices over the years and has
charged for his services in that connection. ... (People v. Schafer, 87 N.E. 2d 773)
xxx xxx xxx
... An attorney, in the most general sense, is a person designated or employed by another to act in his stead; an
agent; more especially, one of a class of persons authorized to appear and act for suitors or defendants in legal
proceedings. Strictly, these professional persons are attorneys at law, and non-professional agents are properly
styled "attorney's in fact;" but the single word is much used as meaning an attorney at law. A person may be an
attorney in facto for another, without being an attorney at law. Abb. Law Dict. "Attorney." A public attorney, or
attorney at law, says Webster, is an officer of a court of law, legally qualified to prosecute and defend actions in
such court on the retainerof clients. "The principal duties of an attorney are (1) to be true to the court and to his
client; (2) to manage the business of his client with care, skill, and integrity; (3) to keep his client informed as to
the state of his business; (4) to keep his secrets confided to him as such. ... His rights are to be justly
compensated for his services." Bouv. Law Dict. tit. "Attorney." The transitive verb "practice," as defined by
Webster, means 'to do or perform frequently, customarily, or habitually; to perform by a succession of acts, as,
to practice gaming, ... to carry on in practice, or repeated action; to apply, as a theory, to real life; to exercise,
as a profession, trade, art. etc.; as, to practice law or medicine,' etc...." (State v. Bryan, S.E. 522, 523;
Emphasis supplied)
In this jurisdiction, we have ruled that the practice of law denotes frequency or a succession of acts. Thus, we stated in the case
of People v. Villanueva (14 SCRA 109 [1965]):
xxx xxx xxx
... Practice is more than an isolated appearance, for it consists in frequent or customary actions, a succession of acts of the
same kind. In other words, it is frequent habitual exercise (State v. Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice
of law to fall within the prohibition of statute has been interpreted as customarily or habitually holding one's self out to the public,
as a lawyer and demanding payment for such services. ... . (at p. 112)
It is to be noted that the Commission on Appointment itself recognizes habituality as a required component of the meaning of
practice of law in a Memorandum prepared and issued by it, to wit:
l. Habituality. The term 'practice of law' implies customarilyor habitually holding one's self out to the public as a
lawyer (People v. Villanueva, 14 SCRA 109 citing State v. Bryan, 4 S.E. 522, 98 N.C. 644) such as when one
sends a circular announcing the establishment of a law office for the general practice of law (U.S. v. Noy
Bosque, 8 Phil. 146), or when one takes the oath of office as a lawyer before a notary public, and files a
manifestation with the Supreme Court informing it of his intention to practice law in all courts in the country
(People v. De Luna, 102 Phil. 968).
Practice is more than an isolated appearance, for it consists in frequent or customary action, a succession of
acts of the same kind. In other words, it is a habitual exercise (People v. Villanueva, 14 SCRA 1 09 citing State
v. Cotner, 1 27, p. 1, 87 Kan, 864)." (Rollo, p. 115)
xxx xxx xxx

28

While the career as a businessman of respondent Monsod may have profited from his legal knowledge, the use of such legal
knowledge is incidental and consists of isolated activities which do not fall under the denomination of practice of law. Admission
to the practice of law was not required for membership in the Constitutional Commission or in the Fact-Finding Commission on
the 1989 Coup Attempt. Any specific legal activities which may have been assigned to Mr. Monsod while a member may be
likened to isolated transactions of foreign corporations in the Philippines which do not categorize the foreign corporations as
doing business in the Philippines. As in the practice of law, doing business also should be active and continuous. Isolated
business transactions or occasional, incidental and casual transactions are not within the context of doing business. This was
our ruling in the case of Antam Consolidated, Inc. v. Court of appeals, 143 SCRA 288 [1986]).
Respondent Monsod, corporate executive, civic leader, and member of the Constitutional Commission may possess the
background, competence, integrity, and dedication, to qualify for such high offices as President, Vice-President, Senator,
Congressman or Governor but the Constitution in prescribing the specific qualification of having engaged in the practice of law
for at least ten (10) years for the position of COMELEC Chairman has ordered that he may not be confirmed for that office. The
Constitution charges the public respondents no less than this Court to obey its mandate.
I, therefore, believe that the Commission on Appointments committed grave abuse of discretion in confirming the nomination of
respondent Monsod as Chairman of the COMELEC.
I vote to GRANT the petition.
Bidin, J., dissent
EN BANC

G.R. No. 104848 January 29, 1993

ANTONIO GALLARDO, ANTONIO AREVALO, CRESENCIO ECHAVES, EMMANUEL ARANAS, PALERMO SIA, RONNIE
RAMBUYON, PRIMO NAVARRO, and NOEL NAVARRO, petitioners,
vs.
HON. SINFOROSO V. TABAMO, JR., in his capacity as Presiding Judge of Branch 28 of the Regional Trial Court of
Mambajao, Camiguin, and PEDRO P. ROMUALDO, respondents.
Villarama & Cruz for petitioners.
Marciano LL. Aparte, Jr. for private respondents.

DAVIDE, JR., J.:

This is a petition for certiorari and prohibition under Rule 65 of the Revised Rules of Court. Petitioners would have Us prohibit,
restrain and enjoin public respondent Sinforoso V. Tabamo, Jr., Presiding Judge of Branch 28 of the Regional Trial Court (RTC)
of Mambajao, Camiguin, from continuing with the proceedings in a petition for injunction, prohibition and mandamus with a
prayer for a writ of preliminary injunction and restraining order filed as a taxpayer's suit, docketed therein as Special Civil Action
No. 465 and entitled "Pedro P. Romualdo, Jr. versus Gov. Antonio Gallardo, et al." Petitioners likewise seek to prohibit the
enforcement of the Temporary Restraining Order (TRO), issued by the respondent Judge on 10 April 1992, on the ground that
the latter acted whimsically, capriciously and without jurisdiction when he took cognizance of the case and issued the said order.
It is the petitioners' thesis that the said case principally involves an alleged violation of the provisions of the Omnibus Election
Code the jurisdiction over which is exclusively vested in the Commission on Elections (COMELEC). It is additionally averred that
the action is completely baseless, that the private respondent is not a real party in interest and that the public respondent acted
with undue haste, manifest partiality and evident bias in favor of the private respondent in issuing the TRO.

29

In Our Resolution of 20 April 1992, We required the respondents to comment on the petition and issued a Temporary Restraining
Order directing the respondent Judge to cease and desist from implementing and enforcing the challenged Order of 10 April
1922, and from continuing with the proceedings in Special Civil Action No. 465.
At the time of the filing of both the special civil action and the instant petition, petitioner Antonio Gallardo was the incumbent
Governor of the Province of Camiguin and was seeking re-election in the 11 May 1992 synchronized elections. Petitioners
Antonio Arevalo, Cresencio Echaves, Emmanuel Aranas and Palermo Sia are the provincial treasurer, provincial auditor,
provincial engineer and provincial budget officer of Camiguin, respectively. Their co-petitioners Ronnie Rambuyon, Primo
Navarro and Noel Navarro are all government project laborers. On the other hand, the private respondent was the incumbent
Congressman of the lone Congressional District of Camiguin, a candidate for the same office in the said synchronized elections
and the Regional Chairman of the Laban ng Demokratikong Pilipino (LDP) in Region X.
The antecedents of this case are not complicated.
On 10 April 1992, private respondent filed his Petition 1 (Special Civil Action No. 465) before the court a quo against petitioners
Gallardo, Arevalo, Echaves, Aranas and Sia to prohibit and restrain them from pursuing or prosecuting certain public works
projects; from releasing, disbursing and/or spending any public funds for such projects; and from issuing, using or availing of
treasury warrants or any device for the future delivery of money, goods and other things of value chargeable against public funds
in connection with the said projects as (1) said projects were undertaken in violation of the 45-day ban on public works imposed
by the Omnibus Election Code (Batas Pambansa Blg. 881) because although they were initiated a few days before 27 March
1992, the date the ban took effect, they were not covered by detailed engineering plans, specifications or a program of work
which are preconditions for the commencement of any public works project; hence, they could not have been lawfully and validly
undertaken; (2) the hiring of hundreds of laborers in the different projects continues unabated in flagrant violation of paragraphs
(a), (b), (v) and (w), Section 261 of the Omnibus Election Code; (3) the projects were undertaken in violation of the provisions of
the Local Government Code 2 governing the use and expenditure of the twenty percent (20%) development fund of the Province
of Camiguin; (4) these projects, which are "Locally-Funded", were pursued without the requisite approval of the provincial budget
by the Regional Office of Budget and Management as required by Section 326 of the Local Government Code; (5) some of the
projects which are "Foreign-Assisted" and funded by the Spanish Assistance for Integrated Livelihood Program (SAIL) lack the
required building permits and are without any relevance to those livelihood projects envisioned by the SAIL; and (6) more
importantly, as alleged in paragraph VII of his Petition: 3
. . . the illegal prosecution of these public work projects requiring massive outlay of public funds during this
election period has been and is being done maliciously and intentionally for the purpose of corrupting the voters
and inducing them to support the candidacy of Respondent Gallardo and his candidates in the coming May 11,
1992 election.
In support of his prayer for a restraining order to be issued upon the filing of the petition and a writ of preliminary injunction
immediately thereafter, herein private respondent alleges in paragraph XV of his Petition:
That unless the illegal acts of Respondents are enjoined or restrained immediately first by the issuance of the
restraining order upon the filing of this Petition and immediately after that a Writ of Preliminary Injunction, great
or irreparable loss and injury shall be caused not only to Petitioner himself, as a candidate and as a taxpayer,
but also to the entire LDP slate of candidates, whose supporters are being corrupted and illegally induced to
vote for Respondent Antonio A. Gallardo and his candidates in consideration of their employment in these
projects, but (sic) most of all the greatest and most irreparable loss, damage and injury, in terms of wanton,
irresponsible, excessive, abusive and flagrant waste of public money, is now being caused and shall continue
to be caused, primarily and principally to the sixty-thousand or more taxpayers of the Province of Camiguin,
whom Petitioner represents as Congressman and whose interests Petitioner is sworn to uphold, promote and
protect. 4
The questioned projects are classified into two (2) categories: (a ) those that are Locally-Funded, consisting of twenty-nine (29)
different projects for the maintenance or concreting of various roads, the rehabilitation of the Katibawasan Falls and the
construction of the Capitol Building, and (b) those designated as Foreign-Assisted, consisting of fifteen (15) projects which
include the construction of the Human Resource Development Center, various Day Care cum Production Centers and

30

waterworks systems; the extension and renovation of various buildings; the acquisition of hospital and laboratory equipment;
and the rehabilitation of office and equipment. 5
On the same day that the private respondent filed his petition, public respondent Judge issued the questioned TRO, 6 the
pertinent portion of which reads:
It appearing from the verified petition in this case that great and irreparable damage and/or injuryshall be
caused to the petitioner as candidate and taxpayer, such damage and injury taking the form and shape
occasioned by the alleged wanton, excessive, abusive and flagrant waste of public money, before the matter
can be heard on notice, the respondents are hereby Temporarily Restrained from pursuing or prosecuting the
projects itemized in Annexes "A" and "A-1" of the petition; from releasing, disbursing and/or spending any
public funds for such projects; from issuing, using or availing of treasury warrants or any device undertaking
future delivery of money, goods or other things of value chargeable against public funds in connection with said
projects. (Emphasis supplied).
In the same order, the public respondent directed the petitioners to file their Answer within ten (10) days from receipt of notice
and set the hearing on the application for the issuance of the writ of preliminary injunction for 24 April 1992. Instead of filing the
Answer, the petitioners filed the instant special civil action for certiorari and prohibition, with a prayer for a writ of preliminary
injunction and/or temporary restraining order, alleging as grounds therefor the following:
I
PUBLIC RESPONDENT HAS NO JURISDICTION OVER SPECIAL CIVIL ACTION NO. 465, BEING (sic) A
SUIT INTENDED TO ENJOIN AN ALLEGED VIOLATION OF THE OMNIBUS ELECTION CODE.
II
REGIONAL TRIAL COURT'S JURISDICTION IS LIMITED TO CRIMINAL ACTIONS FOR VIOLATION OF THE
OMNIBUS ELECTION CODE.
III
THE REGIONAL TRIAL COURT HAS NO JURISDICTION TO TAKE COGNIZANCE OF
COMPLAINTS/PETITION BASED ON ELECTION OFFENSES PRIOR TO THE CONDUCT OF PRELIMINARY
INVESTIGATION BY THE COMMISSION ON ELECTIONS; FURTHER, PRIVATE RESPONDENT HAS NO
RIGHT TO FILE SPECIAL CIVIL ACTION NO. 465 SINCE THE AUTHORITY TO PROSECUTE ELECTION
OFFENSES BELONGS TO THE COMMISSION ON ELECTIONS.
IV
PRIVATE RESPONDENT FAILED TO EXHAUST ALL HIS ADMINISTRATIVE REMEDIES
V
THE PETITION DATED 09 APRIL 1992 FILED WITH PUBLIC RESPONDENT IS COMPLETELY BASELESS
SINCE:
A. THE PUBLIC WORKS PROJECTS BEING UNDERTAKEN BY PETITIONERS ARE
EXEMPTED FROM THE PUBLIC WORKS BAN ENFORCED BY THE COMELEC.
B. THE PUBLIC WORKS PROJECTS WERE COMMENCED ONLY AFTER APPROVAL OF
THE DETAILED ENGINEERING PLANS AND SPECIFICATIONS AND PROGRAM OF
WORK.

31

C. THE PUBLIC WORKS PROJECTS WERE PROPERLY SUPPORTED BY A BUDGET

DULY PASSED AND APPROVED BY THE SANGGUNIANG PANLALAWIGAN.
D. THE DEVELOPMENT FUND MAY VALIDLY BE USED TO FINANCE THE MAINTENANCE
OF PROVINCIAL ROADS.
VI
THE TAXPAYER'S SUIT FILED BY PRIVATE RESPONDENT IS IMPROPER SINCE HE IS NOT A REAL
PARTY IN INTEREST.
VII
THE PUBLIC RESPONDENT ACTED WITH UNDUE HASTE, MANIFEST PARTIALITY AND EVIDENT BIAS IN
FAVOR OF PRIVATE RESPONDENT AND AGAINST PETITIONERS IN ISSUING THE TEMPORARY
RESTRAINING ORDER. 7
As adverted to earlier, We issued a Temporary Restraining Order on 20 April 1992.
After considering the allegations, issues and arguments adduced in the Petition, the Comment thereto and the Reply to the
Comment, We gave due course 8 to this Petition and required the parties to submit their respective Memoranda which they
complied with.
The main issue in this case is whether or not the trial court has jurisdiction over the subject matter of Special Civil Action No.
465. The material operative facts alleged in the petition therein inexorably link the private respondent's principal grievance to
alleged violations of paragraphs (a), (b), (v) and (w), Section 261 of the Omnibus Election Code (Batas Pambansa Blg. 881).
There is particular emphasis on the last two (2) paragraphs which read:
Sec. 261. Prohibited Acts. The following shall be guilty of an election offense:
(a) Vote-buying and vote-selling.
xxx xxx xxx
(b) Conspiracy to bribe voters.
xxx xxx xxx
(v) Prohibition against release, disbursement or expenditure of public funds. Any public official or employee
including barangay officials and those of government-owned or controlled corporations and their subsidiaries,
who, during forty-five days before a regular election and thirty days before a special election, releases,
disburses or expends any public funds for:
(1) Any and all kinds of public works, except the following:
xxx xxx xxx
(w) Prohibition against construction of public works, delivery of materials for public works and issuance of
treasury warrants and similar devices. During the period of forty-five days preceding a regular election and
thirty days before a special election, any person who (a) undertakes the construction of any public works,
except for projects or works exempted in the preceding paragraph; or (b) issues, uses or avails of treasury
warrants or any device undertaking future delivery of money, goods or other things of value chargeable against
public funds.

32

Private respondent likewise focuses on Resolution No. 2332 (not 2322 as erroneously stated in page 10 of his Petition) of the
COMELEC, promulgated on 2 January 1992, implementing the aforesaid paragraphs (v) and (w) of Section 261 and fixing the
duration of the 45-day ban for purposes of the synchronized elections from 27 March 1992 to 11 May 1922.
Essentially, therefore, Civil Case No. 465 before the trial court is for the enforcement of laws involving the conduct of elections;
corollarily, the issue that is logically provoked is whether or not the trial court has jurisdiction over the same. If the respondent
Judge had only hearkened to this Court's teaching about a quarter of a century earlier, this case would not have reached Us and
taken away from more deserving cases so much precious time.
Zaldivar vs. Estenzo, 9 decided by this Court on 3 May 1968, had squarely resolved the issue above posed. Speaking through
then Associate Justice Enrique Fernando (who later became Chief Justice), this Court explicitly ruled that considering that the
Commission on Elections is vested by the Constitution with exclusive charge of the enforcement and administration of all laws
relative to the conduct of elections, the assumption of jurisdiction by the trial court over a case involving the enforcement of the
Election Code "is at war with the plain constitutional command, the implementing statutory provisions, and the hospitable scope
afforded such grant of authority so clear and unmistakable in recent decisions." 10
Said case was decided under the aegis of the 1935 Constitution and R.A. No. 180, otherwise known as the Revised Election
Code, which took effect on 21 June 1947. The present Constitution and extant election laws have further strengthened the
foundation for the above doctrine; there can be no doubt that the present COMELEC has broader powers than its predecessors.
While under the 1935 Constitution it had "exclusive charge of the enforcement and administration of all laws relative to the
conduct of elections," exercised "all other functions . . . conferred upon it by law" 11 and had the power to deputize all law
enforcement agencies and instrumentalities of the Government for the purpose of insuring free, orderly and honest
elections, 12 and under the 1973 Constitution it had, inter alia, the power (a) "[E]nforce and administer all laws relative to the
conduct of elections" 13 (b) "[D]eputize, with the consent or at the instance of the Prime Minister, law enforcement agencies and
instrumentalities of the Government, including the Armed Forces of the Philippines, for the purpose of ensuring free, orderly, and
honest elections,"14 and (c) "[P]erform such other functions as may be provided by law," 15 it was not expressly vested with the
power to promulgate regulations relative to the conduct of an election. That power could only originate from a special law
enacted by Congress; this is the necessary implication of the above constitutional provision authorizing the Commission to
"[P]erform such other functions as may be provided by law."
The present Constitution, however, implicitly grants the Commission the power to promulgate such rules and regulations. The
pertinent portion of Section 2 of Article IX-C thereof reads as follows:
Sec. 2. The Commission on Elections shall exercise the following powers and functions:
(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative,
referendum, and recall. (Emphasis supplied).
xxx xxx xxx
The word regulations is not found in either the 1935 or 1973 Constitutions. It is thus clear that its incorporation into the present
Constitution took into account the Commission's power under the Omnibus Election Code (Batas Pambansa Blg. 881), which
was already in force when the said Constitution was drafted and ratified, to:
xxx xxx xxx
Promulgate rules and regulations implementing the provisions of this Code or other laws which the Commission
is required to enforce and administer, . . . . 16
Hence, the present Constitution upgraded to a constitutional status the aforesaid statutory authority to grant the
Commission broader and more flexible powers to effectively perform its duties and to insulate it further from legislative
intrusions. Doubtless, if its rule-making power is made to depend on statutes, Congress may withdraw the same at any
time. Indeed, the present Constitution envisions a truly independent Commission on Elections committed to ensure free,
orderly, honest, peaceful and credible elections, 17 and to serve as the guardian of the people's sacred right of suffrage

33

 the citizenry's vital weapon in effecting a peaceful change of government and in achieving and promoting political
stability.
Additionally, by statutory mandate, the present Commission on Elections possesses, inter alia, the following powers:
l) Exercise direct and immediate supervision and control over national and local officials or employees,
including members of any national or local law enforcement agency and instrumentality of the government
required by law to perform duties relative to the conduct of elections. In addition, it may authorize CMT cadets
eighteen years of age and above to act as its deputies for the purpose of enforcing its orders.
The Commission may relieve any officer or employee referred to in the preceding paragraph from the
performance of his duties relating to electoral processes who violates the election law or fails to comply with its
instructions, orders, decisions or rulings, and appoint his substitute. Upon recommendation of the Commission,
the corresponding proper authority shall suspend or remove from office any or all of such officers or employees
who may, after due process, be found guilty of such violation or failure. 18
2) To stop any illegal election activity, or confiscate, tear down, and stop any unlawful, libelous, misleading or
false election propaganda, after due notice and hearing. 19
Needless to say, the acts sought to be restrained in Special Civil Action No. 465 before the court a quo are matters falling within
the exclusive jurisdiction of the Commission. As a matter of fact, the specific allegations in the petition therein of violations of
paragraphs (a), (b), (v) and (w), Section 261 of the Omnibus Election Code provide a stronger basis and reason for the
application of the Zaldivar doctrine. At most, the facts in the latter case do not illustrate as clearly the announced doctrine as the
facts in this case do. In Zaldivar, no specific provision of the Revised Election Code then in force was alleged to have been
violated. What was sought to be enjoined was the alleged wielding by Zaldivar, then a municipal mayor, of the power, by virtue of
his office, to appoint special policemen or agents to terrorize voters into supporting the congressional candidate of his choice. In
holding that the then Court of First Instance did not have jurisdiction over the case, this Court considered the constitutional
power of the Commission on Elections to have exclusive charge of the enforcement and administration of all laws relative to the
conduct of elections and to exercise all other functions which may be conferred by law. We likewise relied on the provisions of
the Revised Election Code vesting upon the COMELEC (a) direct and immediate supervision over municipal, city and provincial
officials designated by law to perform duties relative to the conduct of elections and (b) authority to suspend them from the
performance of such duties for failure to comply with its instructions, orders, decisions or rulings and recommend to the
President their removal if found guilty of non-feasance, malfeasance or misfeasance in connection with the performance of their
duties relative to the conduct of elections. 20
Under the present law, however, except in case of urgent need, the appointment or hiring of new employees or the creation or
filling up of new positions in any government office, agency or instrumentality, whether national or local, including governmentowned or controlled corporations, is banned during the period of forty-five (45) days before a regular election and thirty (30) days
before a special election if made without the prior authority of the Commission on Elections. A violation thereof constitutes an
election offense. 21 Then too, no less than the present Constitution and not just the Election Law as was the case at the time
of Zaldivar expressly provides that the Commission may "[R]ecommend to the President the removal of any officer or
employee it has deputized, or the imposition of any other disciplinary action, for violation or disregard of, or disobedience to its
directive, order, or decision." 22
Moreover, the present Constitution also invests the Commission with the power to "investigate and, where appropriate,
prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and
malpractices." 23
It may thus be said without fear of contradiction that this vast array of powers and functions now enjoyed by the Commission
under the present Constitution provides a stronger foundation for, and adds vigor and vitality to, theZaldivar doctrine.
The rationale of the said doctrine needs to be stressed here so that henceforth, no judge will lose his bearings when confronted
with the same issue. Otherwise, he should be held to account for either the sheer ignorance of the law or the callous disregard
of pronouncements by this Court to accommodate partisan political feelings. We declared in the said case:

34

The question may be asked: Why should not the judiciary be a

co-participant in this particular instance of enforcing the Election Code as its authority was invoked? The
obvious answer is the literal language of the Constitution which empowers the Commission on Elections to
"have exclusive charge of the enforcement and administration of all laws relative to the conduct of the
elections." Moreover, as was so aptly observed by the then Justice Frankfurter, although the situation
confronting the United States Supreme Court was of a different character: "Nothing is clearer than that this
controversy concerns matters that brings courts into immediate and active relations with party contests. From
the determination of such issues this Court has traditionally held aloof. It is hostile to a democratic system to
involve the judiciary in the politics of the people. And it is not less pernicious if such judicial intervention in an
essentially political contest be dressed up in the abstract phrases of the law." 24 Then, too, reference by analogy
may be made to the principle that sustains Albano v. Arranz. For even without the express constitutional
prescription that only this Court may review the decisions, orders and rulings of the Commission on Elections, it
is easy to understand why no inference whatsoever with the performance of the Commission on Elections of its
functions should be allowed unless emanating from this Court. The observation of Acting Chief Justice J.B.L.
Reyes in Albano v. Arranz,25 while not precisely in point, indicates the proper approach. Thus: "It is easy to
realize the chaos that would ensue if the Court of First Instance of each and every province were to arrogate
unto itself the power to disregard, suspend, or contradict any order of the Commission on Elections; that
constitutional body would be speedily reduced to impotence."
This conclusion finds' support from a consideration of weight and influence. What happened in this case could
be repeated elsewhere. It is not improbable that courts of first instance would be resorted to by leaders of
candidates or political factions entertaining the belief whether rightly or wrongly that local officials would employ
all the power at their command to assure the victory of their candidates. Even if greater care and
circumspection, than did exist in this case, would be employed by judges thus appealed to, it is not unlikely that
the shadow of suspicion as to alleged partisanship would fall on their actuations, whichever way the matter
before them is decided. It is imperative that the faith in the impartiality of the judiciary be preserved unimpaired.
Whenever, therefore, the fear may be plausibly entertained that an assumption of jurisdiction would lead to a
lessening of the undiminished trust that should be reposed in the courts and the absence of authority
discernible the from the wording of applicable statutory provisions and the trend of judicial decisions, even if no
constitutional mandate as that present in this case could be relied upon, there should be no hesitancy in
declining to act. 26
The foregoing disquisitions should have rendered unnecessary the resolution of the remaining collateral issues raised in this
petition. In view, however, of their importance, they will be dealt with in a general way.
It is not true that, as contended by the petitioners, the jurisdiction of the Regional Trial Court under the election laws is limited to
criminal actions for violations of the Omnibus Election Code. The Constitution itself grants to it exclusive original jurisdiction over
contests involving elective municipal officials. 27 Neither can We agree with the petitioners' assertion that the Special Civil Action
filed in the court below involves the prosecution of election offenses; the said action seeks some reliefs incident to or in
connection with alleged election offenses; specifically, what is sought is the prevention of the further commission of these
offenses which, by their alleged nature, are continuing.
There is as well no merit in the petitioners' claim that the private respondent has no legal standing to initiate the filing of a
complaint for a violation of the Omnibus Election Code. There is nothing in the law to prevent any citizen from exposing the
commission of an election offense and from filing a complaint in connection therewith. On the contrary, under the COMELEC
Rules of Procedure, initiation of complaints for election offenses may be donemotu propio by the Commission on Elections or
upon written complaint by any citizen, candidate or registered political party or organization under the party-list system or any of
the accredited citizens arms of the Commission. 28 However, such written complaints should be filed with the "Law Department of
the Commission; or with the offices of the Election Registrars, Provincial Election Supervisors or Regional Election Directors, or
the State Prosecutor, Provincial Fiscal or City Fiscal." 29 As earlier intimated, the private respondent was not seriously concerned
with the criminal aspect of his alleged grievances. He merely sought a stoppage of the public works projects because of their
alleged adverse effect on his candidacy. Indeed, while he may have had reason to fear and may have even done the right thing,
he committed a serious procedural misstep and invoked the wrong authority.

35

We have, therefore, no alternative but to grant this petition on the basis Our resolution of the principal issue. Nevertheless, it
must be strongly emphasized that in so holding that the trial court has no jurisdiction over the subject matter of Special Civil
Action No. 465, We are not to be understood as approving of the acts complained of by the private respondent. If his charges for
the violation of paragraphs (a), (b), (v) and (w), Section 261 of the Omnibus Election Code are true, then no one should be
spared from the full force of the law. No government official should flout laws designed to ensure the holding of free, orderly,
honest, peaceful and credible elections or make a mockery of our electoral processes. The bitter lessons of the past have shown
that only elections of that nature or character can guarantee a peaceful and orderly change. It is then his duty to respect,
preserve and enhance an institution which is vital in any democratic society.
WHEREFORE, the instant Petition is hereby GRANTED. The challenged order of respondent Judge of 10 April 1992 in Special
Civil Action No. 465 is SET ASIDE and said Civil Case is hereby ordered DISMISSED, without prejudice on the part of the
private respondent to file, if he is so minded, the appropriate complaint for an election offense pursuant to the COMELEC Rules
of Procedure.
Costs against the private respondent.
SO ORDERED.
Feliciano, Padilla, Bidin, Grio-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and Campos, Jr., JJ., concur.

Separate Opinions

CRUZ, J., concurring and dissenting:

I concur but, regretfully, not with the statement that the Commission on Elections now derives the power to promulgate
resolutions directly from Article IX-C, Section 2(l) of the Constitution, to wit:
Sec. 2. The Commission on Elections shall exercise the following powers and functions:
(1) Enforce and administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall. (Emphasis supplied)
xxx xxx xxx
With all due respect, I submit that what the COMELEC is authorized to do under that provision is only to "enforce and
administer" such laws and regulations, not to promulgate them. The addition of the word "regulations" in the new subsection
does not empower it now to promulgate regulations any more than it can promulgate laws. As I read it, all that the change
imports is that the scope of the measures the COMELEC may enforce and administer has been expressly widened, to include
"regulations."
Regulations are mainly intended to implement or supplement a law and may be generally issued only pursuant to a valid
delegation of legislative power. That is why they are known as "subordinate legislation." In the case of the COMELEC, I see no
constitutional vesture in it of the power to promulgate regulations, much less laws. There does not seem to be even an "implicit"
grant of that authority, as the ponencia suggests.

36

Narvasa, C.J., and Gutierrez, Jr., J., concur.

# Separate Opinions
CRUZ, J., concurring and dissenting:
I concur but, regretfully, not with the statement that the Commission on Elections now derives the power to promulgate
resolutions directly from Article IX-C, Section 2(l) of the Constitution, to wit:
Sec. 2. The Commission on Elections shall exercise the following powers and functions:
(1) Enforce and administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall. (Emphasis supplied)
xxx xxx xxx
With all due respect, I submit that what the COMELEC is authorized to do under that provision is only to "enforce and
administer" such laws and regulations, not to promulgate them. The addition of the word "regulations" in the new subsection
does not empower it now to promulgate regulations any more than it can promulgate laws. As I read it, all that the change
imports is that the scope of the measures the COMELEC may enforce and administer has been expressly widened, to include
"regulations."
Regulations are mainly intended to implement or supplement a law and may be generally issued only pursuant to a valid
delegation of legislative power. That is why they are known as "subordinate legislation." In the case of the COMELEC, I see no
constitutional vesture in it of the power to promulgate regulations, much less laws. There does not seem to be even an "implicit"
grant of that authority, as the ponencia suggests.
Narvasa, C. J., and Gutierrez, Jr., J., concur.

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