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Cayetano vs.

Monsod 201 SCRA 210


September 1991
Ponente: Paras, J.
Facts: Respondent Christian Monsod was
nominated by President Corazon C. Aquino to the
position of chairman of the COMELEC. Petitioner
opposed the nomination because allegedly
Monsod does not possess required qualification of
having been engaged in the practice of law for at
least ten years.
The 1987 constitution provides in Section 1,
Article IX-C: There shall be a Commission on
Elections composed of a Chairman and six
Commissioners who shall be natural-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.
Issue: Whether the respondent does not
posses the required qualification of having
engaged in the practice of law for at least
ten years.
Held:
In the case of Philippine Lawyers Association vs.
Agrava, 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
proceeding, the management of such actions and
proceedings on behalf of clients before judges
and courts, and in addition, conveying.
In general, all advice to clients, and all action
taken for them in matters connected with the law
incorporation services, assessment and
condemnation services, contemplating an
appearance before judicial body, the foreclosure
of mortgage, enforcement of a creditors 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. Practice of law
means any activity, in or out court, which requires
the application of law, legal procedure,
knowledge, training and experience.
The contention that Atty. Monsod does not
possess the required qualification of having
engaged in the practice of law for at least ten
years is incorrect since Atty. Monsods past work
experience as a lawyer-economist, a lawyermanager, a lawyer-entrepreneur of industry, a
lawyer-negotiator of contracts, and a lawyer-

legislator of both rich and the poor verily more


than satisfy the constitutional requirement for the
position of COMELEC chairman, The respondent
has been engaged in the practice of law for at
least ten years does In the view of the foregoing,
the petition is DISMISSED.
http://philippinecasedigests.blogspot.com/2010/0
9/cayetano-vs-monsod-201-scra-210.html
Cayetano v. Monsod Revisited
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) (at p. 214)
The issue in the case was whether or not the
respondent Monsod, a lawyer, was qualified for
appointment as Chair of the Commission on
Elections (COMELEC), since Art. IX-C, Sec. 1[1] of
the 1987 Constitution requires that, inter alia, a
majority of the COMELEC, including the
Chairman, shall be members of the Philippine Bar
who have been engaged in the practice of law for
at least ten years.
The Court, thru Justice Paras, stated that there
seems to be no jurisprudence as to what
constitutes practice of law as a legal qualification
to an appointive office (at p.212), determined
that the practice of law is not limited to the
conduct of cases in court (at pp. 216-217) and
pursuant thereto, found that Monsod was
qualified for appointment as COMELEC Chair:
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. Monsods
past work experiences as lawyer-economist, a
lawyer-manager, a lawyer-entrepreneur of
industry, a lawyer-negotiator of contracts, and a
lawyer-legislator of both the rich and the poor
verily more than satisfy the constitutional
requirement that he has been engaged in the
practice of law for at least ten years. (at pp. 225226, Italics supplied)
The Court cited its definition of practice of law
in various other Decisions, calling the same as
broad (Lim-Santiago v. Atty. Sagucio [486 SCRA
10 [2006]; In Re Letter of UP Law Faculty Entitled

Restoring Integrity [AM No. 10-10-4-SC, March


8, 2011]). In the latter case, it held that lawyers
when they teach law are considered engaged in
the practice of law, primarily to underscore their
ethical and professional responsibilities:
Unlike professors in other disciplines and more
than lawyers who do not teach law, respondents
are bound by their oath to uphold the ethical
standards of the legal profession. Thus, their
actions as law professors must be measured
against the same canons of professional
responsibility applicable to acts of members of
the Bar as the fact of their being law professors is
inextricably entwined with the fact that they are
lawyers.
What are less well-known, but very thoughtprovoking, are the opinions of Supreme Court
Justices Padilla, Cruz, and Gutierrez who
dissented from the ponencia of Justice Paras in
Cayetano v. Monsod. Justice Paras remarked that
the dissent of Justice Padilla:
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 Padillas 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. (at p. 227; Italics supplied.
The dissent is at pp. 230-233)
With respect to the dissent of Justice Cruz, Justice
Paras said that:
Justice Cruz goes on to say in substance that
since the law covers almost all situations, most
individuals, in making uses 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 practicing law for over ten
years. This is different from the acts of persons
practicing law, without first becoming lawyers.
(at p. 227; Italics supplied. The dissent is at pp.
234-236)
Parenthetically, the comment of Justice Paras
about the acts of persons practicing law, without
first becoming lawyers appears to open the
practice of law to non-lawyers. This brings to
mind a priest (not Fr. Bernas) with a penchant to
pontificate about the law (civil, not canon) even
though he is not a lawyer:

I have been informed that someone who has


taken a perpetual vow to dislike me has asked
why I am repeatedly interviewed and asked for
opinions on questions of law. I have never held
myself out to be a lawyer. I do not need the title. I
do not make my living from representing the
gripes of others in court, and engorging myself
by others quest for the vindication of their rights.
It is not my doing that I am interviewed and he is
not, that my opinions are sought, and that none
care for his! I have studied the law as a scholar of
a discipline. For that, you do not need a license.
You need intelligence and diligence, and you
need the recognition of fellow-academics that
you know of what you speak (Fr. Ranhilio
Aquino, For the Sake of Rationality. September
30, 2013, Manila Standard Today)
Legal ethics is an oxymoron. It was not so
much a swipe at the law as at lawyers, and the
fact is that in the Philippines, as well as in other
jurisdictions as well, they suffer a trust-deficit.
People it seems trust embalmers more than they
trust lawyers. This is no laughing matter, at least
not for those who care passionately about serving
the ends of justice. x-x-x (Fr. Ranhilio
Aquino, Legal Ethics An Oxymoron? June 17,
2013, Manila Standard Today)
The priests acts of rendering legal opinions very
well fall within the broad definition of practice of
law. As a non-lawyer, he is engaged in the
unauthorized practice of law, which constitutes
indirect contempt (Rule 71, Sec. 3[e]; CioconReer v. Lubao, AM No. OCA IPI No. 09-3210-RTC
[June 20, 2012];In re Joaquin T. Borromeo, 241
SCRA 405[1995]).
For some reason, Justice Paras did not address
the dissent of Justice Gutierrez (at pp. 236-243):
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 stated 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 on official leave with no
instructions left behind on how he viewed the
issue; and 2 not taking part in the deliberations
and the decision.
x-x-x

Inspite of my high regard for Mr. Monsod, I cannot


shirk from 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 their 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.
Thedeliberate 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 ones 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.
x-x-x
I regret that I cannot join in playing fast and loose
with a term, which even an ordinary laymen
accepts as having a familiar and customary welldefined 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. (Italics
supplied, underscoring ours.)
In his annotation to Cayetano v. Monsod (at pp.
244-252), Judge Nitafan raised concerns similar to

those of the dissenters, Justices Padilla, Cruz, and


Gutierrez:
Practice of law is referred to no less than three
times in Article VIII of the Constitution. First, in
reference to the rule-making power of the
Supreme Court authorizing it to promulgate rules
concerning xxx pleading, practice, and
procedure in all courts, the admission to the
practice of lawxxx Secondly, it has reference to
the qualification of Members of the Supreme
Court, who must have been for fifteen years or
more a judge of a lower court or engaged in the
practice of law in the Philippines. In both
instances, the practice referred to has always
reference to practice in the courts, in fact the
rules promulgated by the Supreme Court under
its rule-making power is called Rules of Court of
the Philippines. In the second instance practice
of law is equated with judgeship in the lower
courts. (Italics supplied, underscoring ours)
The dissenters, as well as Judge Nitafan, were
concerned about the broad definition of practice
of law in Cayetano v. Monsod, an interpretation
affirmed by the Supreme Court (see Lim-Santiago
v. Atty. Sagucio, In Re Letter of UP Law Faculty
Entitled Restoring Integrity [supra]). The
definition is now applied not just to the position of
COMELEC Chair or to other Constitutional offices,
but to all government positions requiring practice
of law as a legal qualification for appointment
thereto.
While the Court (at pp. 212-213) held that the
practice of law is not limited to the conduct of
cases in court, common sense requires that
appointees/applicants to those positions involving
the same which Justice Paras calls the
traditional or stereotyped notion of law practice
(at p. 227), should have the necessary exposure
to, if not experience in litigation. As well as a
practical, and not just theoretical/academic
familiarity with the interplay between substantive
and procedural laws.
As the Court held in OCA v. Ladaga (350 SCRA
326, 331 [2001]), private practice of a profession,
specifically the legal profession, does not pertain
to isolated court appearances; rather, it
contemplates a succession of acts of the same
nature habitually or customarily holding ones self
to the public as a lawyer. And in Maderada v.
Mediodea (413 SCRA 313, 325 [2003]), the
practice of law, though impossible to define
exactly, involves the exercise of a profession or
vocation usually for gain, mainly as attorney by
acting in a representative capacity and
as counselby rendering legal advise to others.

Otherwise, 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. (dissent of Justice Cruz, at p. 235)
But at the end of the day, appointment to these
offices is essentially a political process.
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