2011-200189

October 18, 2013

To

: Partner

From : Associate
Re:

: Re: Constitutionality and legality of opening up of the legal practice in the

Philippines to foreign lawyers and foreign law firms

A. Practice of law

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.1

The practice of law is a profession, a form of public trust, the performance of

which is entrusted only to those who are qualified and who possess good moral
character.2
B. Persons entitled to practice law
Membership in the legal profession is a privilege granted by the state only to
those deserving individuals. It is in the nature of a franchise conferred only for merit

1 Cayetano v. Monsod, 201 SCRA 210 (1991).
2 Ledesma v. Climaco 57 SCRA 473 (1974).

which must be earned by hard study, learning and good conduct.3

Any person heretofore duly admitted as a member of the bar, or hereafter
admitted as such in accordance with the provisions of this rule, and who is in good and
regular standing, is entitled to practice law. 4 Before being admitted to the bar, an
applicant must satisfy the requirements consisting of the following: 1. He/She must be a
citizen of the Philippines, 2. A resident of the Philippines, 3. At least twenty-one years of
age, 4. Of good moral character, 5. Must produce before the Supreme Court satisfactory
evidence of his good moral character and no charges against him, involving moral
turpitude, have been filed or are pending in any court of the Philippines.5
The practice of all professions in the Philippines shall be limited to Filipino citizens, save
in cases prescribed by law.6 Every applicant for admission as a member of the bar must
be a citizen of the Philippines.7

A Filipino citizen admitted to the Phil. Bar must maintain such citizenship to
remain qualified for the practice of law in this country.8 The loss of Filipino citizenship
ipso jure terminates the privilege to practice law in the Philippines except when

3 In Re Sycip 92 SCRA 1 (1979).
4 1997 Rules of Court, Rule 138, 1 (1997).
5 Edgardo M. Villareal II, Legal Profession 39 (2002 ed.)
6 PHIL. CONST. art. XII, 14.
7 1997 Rules of Court, Rule 138, 2 (1997).
8 In Re Arthur Castillo Reyes (1993).

citizenship is lost by reason of naturalization and reacquired through RA 9225.9

C. Authority that regulates the Admission to the practice of law in the Philippines
The Supreme Court shall promulgate rules concerning the protection and
enforcement of constitutional rights, pleading, practice, and procedure in all courts, the
admission to the practice of law.10
The power to admit applicants to the practice of law is judicial in nature and
involves the exercise of judicial discretion. It has been traditionally exercised by the
Supreme Court as an inherent part of its judicial power, that the Authority to decide who
may be admitted to the bar naturally and logically belongs to the judiciary represented by
the Supreme Court finds its underlying rationale in the nature of a judicial function and in
the role played by attorneys in the administration of justice.11

D. Supporting arguments for the position that legal practice in the Philippines is
unconstitutional and illegal
The practice of law is a privilege denied to foreigners. The requirement of
Filipino citizenship and of residence in the Philippines is not harsh, nor unreasonable but

9 In Re Dacanay 540 SCRA 424 (2007).
10 PHIL. CONST. art. VIII, 5.

11 Ruben E. Agpalo, Legal and Judicial Ethics 28 (2009 ed.)

is based on wise and sound principles of public policy, which takes into account the close
connection of the practice of law with the administration of justice and the other branches
of the government. An alien cannot well maintain allegiance to the Republic of the
Philippines, which is required in the oath of a lawyer.12
E. Conclusion
Opening of legal practice in the Philippines to foreign lawyers and foreign law
firms is thus unconstitutional and illegal, aside from the fact that allowing such would
directly contravene the requirements set forth in the above discussions, the rationale of
such prohibition is that Citizenship ensures allegiance to the republic and its laws.

12 Ruben E. Agpalo, Legal and Judicial Ethics 57 (2009 ed.)

2011-200189
October 18, 2013
To

: Partner

From : Associate
Re:

: Re: Whether the Supreme Court can compel Congress to implement the

constitutional ban on dynasties

A. The Constitution
The Constitution is the basic and paramount law to which all other laws must
conform and to which all persons, including the highest officials of the land must defer.
No act shall be valid, however noble its intentions, if it conflicts with the Constitution.
The Constitution must ever remain supreme.13
B. State Policy on political dynasties
The State shall guarantee equal access to opportunities for public service and
prohibit political dynasties as may be defined by law. 14 The meaning of political
dynasties has been left for Congress to define.15 This provision does not contain a
judicially enforceable constitutional right and merely specifies a guideline for legislative
action.16
C. Separation of Powers

13 Isagani A. Cruz, Philippine Political Law 12 (2002 ed.)
14 PHIL. CONST. art. II, 26.
15 Joaquin G. Bernas, S.J., The 1987 Constitution of the Philippines: A Commentary 99
(2009 ed.)
16 Pamatong v. Comelec, G.R. No. 161872, April 13, 2004.

The separation of powers is a fundamental principle in our system of government.

It obtains not through express provision but by actual division in our Constitution. Each
department of the government has exclusive cognizance of matters within its jurisdiction,
and is supreme within its own sphere. But it does not follow from the fact that the three
powers are to be kept separate and distinct that the Constitution intended them to be
absolutely unrestrained and independent of each other. The Constitution has provided for
an elaborate system of checks and balances to secure coordination in the workings of the
various departments of the government. 17 It is intended to prevent concentration of
authority in one person or group of persons that might lead to an irreversible error or
abuse in its exercise to the detriment of our republican institutions.18
To achieve these purposes, the legislative is generally limited to the enactment of
laws and may not enforce or apply them; the executive to the enforcement of laws and
may not enact or apply them; and the judiciary to the application of laws and may not
enact or enforce them.19
D. Legislative Power
Legislative power is the authority to make laws and to alter and repeal them. As
vested by the Constitution in Congress, it is a derivative and delegated power.20 Such is
vested in Congress, except to the extent reserved to the people by provisions on initiative

17 Angara v. Electoral Commission, G.R. No. L-45081, July 15, 1936.
18 Pangasinan Transportation Co. v. Public Service Commission, G.R. No. 47065, June
26, 1940.
19 Isagani A. Cruz, Philippine Political Law 13 (2002 ed.)
20 Joaquin G. Bernas, S.J., The 1987 Constitution of the Philippines: A Commentary 676
(2009 ed.)

and referendum.21
E. Judicial Power
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights, which are legally demandable and enforceable and to
determine whether or not there has been grave abuse of discretion on the part of any
branch or instrumentality of the Government.22

F. Political Question
Political question are questions, which, under the Constitution, are to be decided
by the people in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the legislature or executive branches of government.23

G. Supporting Arguments why the Supreme Court cannot compel Congress

It is a well-settled doctrine that political questions are not within the province of
the judiciary, except to the extent that power to deal with such questions has been
conferred upon the courts by express constitutional or statutory provisions.24 Where the
matter falls under the discretion of another department or especially the people
themselves, the decision reached is in the category of a political question and
consequently may not be the subject of judicial review.

21 PHIL. CONST. art. VI, 1.
22 PHIL. CONST. art. VIII, 1, 2.
23 Tanada v. Cuenco, G.R. No. L-10520, February 28, 1957.
24 Tanada v. Cuenco, G.R. No. L-10520, February 28, 1957.

Considerations affecting the wisdom, efficacy or practicability of a law should come

under the exclusive jurisdiction of the Congress. So too is the interpretation of certain
provisions of the Constitution. Even if the Supreme Court itself might have a contrary
persuasion, it would not be competent for it to insist on its own thinking and substitute it
for the decision of the legislature.25
Mandamus will not lie against the legislative body, its members, or its officers, to
compel the performance of duties purely legislative in their character, which therefore
pertain to their legislative functions over which they have exclusive control. The courts
cannot dictate action in this respect without a gross usurpation of power.26

H. Conclusion
On the basis of the supremacy of the Constitution in the delegation of legislative
powers and judicial powers to legislative and judicial branches, the doctrine of separation
of powers, political questions, and the various jurisprudence on the same especially the
case of Alejandrino v. Quezon which laid down the doctrine that Mandamus will not lie
against the legislative body since such may amount to gross usurpation of power, A
conclusion can be made that the Supreme Court cannot compel Congress to implement
the constitutional ban on dynasties.

25 Isagani A. Cruz, Philippine Political Law 81 (2002 ed.)
26 Alejandrino v. Quezon, G.R. No. 22041, September 11, 1924.