Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

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.

PARAS, J.:

We are faced here with a controversy of far-reaching proportions. While ostensibly only legal issues are involved, the
Court's decision in this case would indubitably have a profound effect on the political aspect of our national existence.

The 1987 Constitution provides in Section 1 (1), Article IX-C:

There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be
natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age,
holders of a college degree, and must not have been candidates for any elective position in the immediately
preceding -elections. However, a majority thereof, including the Chairman, shall be members of the
Philippine Bar who have been engaged in the practice of law for at least ten years. (Emphasis supplied)

The aforequoted provision is patterned after Section l(l), Article XII-C of the 1973 Constitution which similarly
provides:

There shall be an independent Commission on Elections composed of a Chairman and eight Commissioners who
shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age
and holders of a college degree. However, a majority thereof, including the Chairman, shall be members of the
Philippine Bar who have been engaged in the practice of law for at least ten years.' (Emphasis supplied)

Regrettably, however, there seems to be no jurisprudence as to what constitutes practice of law as a legal
qualification to an appointive office.

Black defines "practice of law" as:

The rendition of services requiring the knowledge and the application of legal principles and technique to
serve the interest of another with his consent. It is not limited to appearing in court, or advising and assisting
in the conduct of litigation, but embraces the preparation of pleadings, and other papers incident to actions
and special proceedings, conveyancing, the preparation of legal instruments of all kinds, and the giving of all
legal advice to clients. It embraces all advice to clients and all actions taken for them in matters connected
with the law. An attorney engages in the practice of law by maintaining an office where he is held out to be-
an attorney, using a letterhead describing himself as an attorney, counseling clients in legal matters,
negotiating with opposing counsel about pending litigation, and fixing and collecting fees for services
rendered by his associate. (Black's Law Dictionary, 3rd ed.)

The practice of law is not limited to the conduct of cases in court. (Land Title Abstract and Trust Co. v. Dworken, 129
Ohio St. 23, 193 N.E. 650) A person is also considered to be in the practice of law when he:

... for valuable consideration engages in the business of advising person, firms, associations or corporations
as to their rights under the law, or appears in a representative capacity as an advocate in proceedings
pending or prospective, before any court, commissioner, referee, board, body, committee, or commission
 constituted by law or authorized to settle controversies and there, in such representative capacity performs
any act or acts for the purpose of obtaining or defending the rights of their clients under the law. Otherwise
stated, one who, in a representative capacity, engages in the business of advising clients as to their rights
under the law, or while so engaged performs any act or acts either in court or outside of court for that
purpose, is engaged in the practice of law. (State ex. rel. Mckittrick v..C.S. Dudley and Co., 102 S.W. 2d
895, 340 Mo. 852)

This Court in the case of Philippine Lawyers Association v.Agrava, (105 Phil. 173,176-177) stated:

The practice of law is not limited to the conduct of cases or litigation in court; it embraces the preparation of
pleadings and other papers incident to actions and special proceedings, the management of such actions
and proceedings on behalf of clients before judges and courts, and in addition, conveying. In general,
all advice to clients, and all action taken for them in matters connected with the law incorporation services,
assessment and condemnation services contemplating an appearance before a judicial body, the
foreclosure of a mortgage, enforcement of a creditor's claim in bankruptcy and insolvency proceedings, and
conducting proceedings in attachment, and in matters of estate and guardianship have been held to
constitute law practice, as do the preparation and drafting of legal instruments, where the work done
involves the determination by the trained legal mind of the legal effect of facts and conditions. (5 Am. Jr. p.
262, 263). (Emphasis supplied)

Practice of law under modem conditions consists in no small part of work performed outside of any court and
having no immediate relation to proceedings in court. It embraces conveyancing, the giving of legal advice
on a large variety of subjects, and the preparation and execution of legal instruments covering an extensive
field of business and trust relations and other affairs. Although these transactions may have no direct
connection with court proceedings, they are always subject to become involved in litigation. They require in
many aspects a high degree of legal skill, a wide experience with men and affairs, and great capacity for
adaptation to difficult and complex situations. These customary functions of an attorney or counselor at law
bear an intimate relation to the administration of justice by the courts. No valid distinction, so far as concerns
the question set forth in the order, can be drawn between that part of the work of the lawyer which involves
appearance in court and that part which involves advice and drafting of instruments in his office. It is of
importance to the welfare of the public that these manifold customary functions be performed by persons
possessed of adequate learning and skill, of sound moral character, and acting at all times under the heavy
trust obligations to clients which rests upon all attorneys. (Moran, Comments on the Rules of Court, Vol. 3
[1953 ed.] , p. 665-666, citing In re Opinion of the Justices [Mass.], 194 N.E. 313, quoted in Rhode Is. Bar
Assoc. v. Automobile Service Assoc. [R.I.] 179 A. 139,144). (Emphasis ours)

The University of the Philippines Law Center in conducting orientation briefing for new lawyers (1974-1975) listed the
dimensions of the practice of law in even broader terms as advocacy, counselling and public service.

One may be a practicing attorney in following any line of employment in the profession. If what he does
exacts knowledge of the law and is of a kind usual for attorneys engaging in the active practice of their
profession, and he follows some one or more lines of employment such as this he is a practicing attorney at
law within the meaning of the statute. (Barr v. Cardell, 155 NW 312)

Practice of law means any activity, in or out of court, which requires the application of law, legal procedure,
knowledge, training and experience. "To engage in the practice of law is to perform those acts which are
characteristics of the profession. Generally, to practice law is to give notice or render any kind of service, which
device or service requires the use in any degree of legal knowledge or skill." (111 ALR 23)

The following records of the 1986 Constitutional Commission show that it has adopted a liberal interpretation of the
term "practice of law."

MR. FOZ. Before we suspend the session, may I make a manifestation which I forgot to do during our
review of the provisions on the Commission on Audit. May I be allowed to make a very brief statement?

THE PRESIDING OFFICER (Mr. Jamir).

The Commissioner will please proceed.

 MR. FOZ. This has to do with the qualifications of the members of the Commission on Audit. Among others,
the qualifications provided for by Section I is that "They must be Members of the Philippine Bar" — I am
quoting from the provision — "who have been engaged in the practice of law for at least ten years".

To avoid any misunderstanding which would result in excluding members of the Bar who are now employed in the
COA or Commission on Audit, we would like to make the clarification that this provision on qualifications regarding
members of the Bar does not necessarily refer or involve actual practice of law outside the COA We have to interpret
this to mean that as long as the lawyers who are employed in the COA are using their legal knowledge or legal talent
in their respective work within COA, then they are qualified to be considered for appointment as members or
commissioners, even chairman, of the Commission on Audit.

This has been discussed by the Committee on Constitutional Commissions and Agencies and we deem it important
to take it up on the floor so that this interpretation may be made available whenever this provision on the
qualifications as regards members of the Philippine Bar engaging in the practice of law for at least ten years is taken
up.

MR. OPLE. Will Commissioner Foz yield to just one question.

MR. FOZ. Yes, Mr. Presiding Officer.

MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is equivalent to the requirement of a
law practice that is set forth in the Article on the Commission on Audit?

MR. FOZ. We must consider the fact that the work of COA, although it is auditing, will necessarily involve
legal work; it will involve legal work. And, therefore, lawyers who are employed in COA now would have the
necessary qualifications in accordance with the Provision on qualifications under our provisions on the
Commission on Audit. And, therefore, the answer is yes.

MR. OPLE. Yes. So that the construction given to this is that this is equivalent to the practice of law.

MR. FOZ. Yes, Mr. Presiding Officer.

MR. OPLE. Thank you.

... ( Emphasis supplied)

Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that the Chairman and two
Commissioners of the Commission on Audit (COA) should either be certified public accountants with not less than ten
years of auditing practice, or members of the Philippine Bar who have been engaged in the practice of law for at least
ten years. (emphasis supplied)

Corollary to this is the term "private practitioner" and which is in many ways synonymous with the word "lawyer."
Today, although many lawyers do not engage in private practice, it is still a fact that the majority of lawyers are
private practitioners. (Gary Munneke, Opportunities in Law Careers [VGM Career Horizons: Illinois], [1986], p. 15).

At this point, it might be helpful to define private practice. The term, as commonly understood, means "an individual or
organization engaged in the business of delivering legal services." (Ibid.). Lawyers who practice alone are often
called "sole practitioners." Groups of lawyers are called "firms." The firm is usually a partnership and members of the
firm are the partners. Some firms may be organized as professional corporations and the members called
shareholders. In either case, the members of the firm are the experienced attorneys. In most firms, there are younger
or more inexperienced salaried attorneyscalled "associates." (Ibid.).

The test that defines law practice by looking to traditional areas of law practice is essentially tautologous, unhelpful
defining the practice of law as that which lawyers do. (Charles W. Wolfram, Modern Legal Ethics [West Publishing
Co.: Minnesota, 1986], p. 593). The practice of law is defined as the performance of any acts . . . in or out of court,
commonly understood to be the practice of law. (State Bar Ass'n v. Connecticut Bank & Trust Co., 145 Conn. 222,
140 A.2d 863, 870 [1958] [quoting Grievance Comm. v. Payne, 128 Conn. 325, 22 A.2d 623, 626 [1941]). Because
lawyers perform almost every function known in the commercial and governmental realm, such a definition would
obviously be too global to be workable.(Wolfram, op. cit.).

The appearance of a lawyer in litigation in behalf of a client is at once the most publicly familiar role for lawyers as
well as an uncommon role for the average lawyer. Most lawyers spend little time in courtrooms, and a large
percentage spend their entire practice without litigating a case. (Ibid., p. 593). Nonetheless, many lawyers do
continue to litigate and the litigating lawyer's role colors much of both the public image and the self perception of the
legal profession. (Ibid.).

In this regard thus, the dominance of litigation in the public mind reflects history, not reality. (Ibid.). Why is this so?
Recall that the late Alexander SyCip, a corporate lawyer, once articulated on the importance of a lawyer as a
business counselor in this wise: "Even today, there are still uninformed laymen whose concept of an attorney is one
who principally tries cases before the courts. The members of the bench and bar and the informed laymen such as
businessmen, know that in most developed societies today, substantially more legal work is transacted in law offices
than in the courtrooms. General practitioners of law who do both litigation and non-litigation work also know that in
most cases they find themselves spending more time doing what [is] loosely desccribe[d] as business counseling
than in trying cases. The business lawyer has been described as the planner, the diagnostician and the trial lawyer,
the surgeon. I[t] need not [be] stress[ed] that in law, as in medicine, surgery should be avoided where internal
medicine can be effective." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).

In the course of a working day the average general practitioner wig engage in a number of legal tasks, each involving
different legal doctrines, legal skills, legal processes, legal institutions, clients, and other interested parties. Even the
increasing numbers of lawyers in specialized practice wig usually perform at least some legal services outside their
specialty. And even within a narrow specialty such as tax practice, a lawyer will shift from one legal task or role such
as advice-giving to an importantly different one such as representing a client before an administrative agency.
(Wolfram, supra, p. 687).

By no means will most of this work involve litigation, unless the lawyer is one of the relatively rare types — a litigator
who specializes in this work to the exclusion of much else. Instead, the work will require the lawyer to have mastered
the full range of traditional lawyer skills of client counselling, advice-giving, document drafting, and negotiation. And
increasingly lawyers find that the new skills of evaluation and mediation are both effective for many clients and a
source of employment. (Ibid.).

Most lawyers will engage in non-litigation legal work or in litigation work that is constrained in very important ways, at
least theoretically, so as to remove from it some of the salient features of adversarial litigation. Of these special roles,
the most prominent is that of prosecutor. In some lawyers' work the constraints are imposed both by the nature of the
client and by the way in which the lawyer is organized into a social unit to perform that work. The most common of
these roles are those of corporate practice and government legal service. (Ibid.).

In several issues of the Business Star, a business daily, herein below quoted are emerging trends in corporate law
practice, a departure from the traditional concept of practice of law.

We are experiencing today what truly may be called a revolutionary transformation in corporate law practice.
Lawyers and other professional groups, in particular those members participating in various legal-policy
decisional contexts, are finding that understanding the major emerging trends in corporation law is
indispensable to intelligent decision-making.

Constructive adjustment to major corporate problems of today requires an accurate understanding of the
nature and implications of the corporate law research function accompanied by an accelerating rate of
information accumulation. The recognition of the need for such improved corporate legal policy formulation,
particularly "model-making" and "contingency planning," has impressed upon us the inadequacy of
traditional procedures in many decisional contexts.

In a complex legal problem the mass of information to be processed, the sorting and weighing of significant
conditional factors, the appraisal of major trends, the necessity of estimating the consequences of given
courses of action, and the need for fast decision and response in situations of acute danger have prompted
the use of sophisticated concepts of information flow theory, operational analysis, automatic data
processing, and electronic computing equipment. Understandably, an improved decisional structure must
stress the predictive component of the policy-making process, wherein a "model", of the decisional context
or a segment thereof is developed to test projected alternative courses of action in terms of futuristic effects
flowing therefrom.

Although members of the legal profession are regularly engaged in predicting and projecting the trends of
the law, the subject of corporate finance law has received relatively little organized and formalized attention
in the philosophy of advancing corporate legal education. Nonetheless, a cross-disciplinary approach to
legal research has become a vital necessity.

Certainly, the general orientation for productive contributions by those trained primarily in the law can be
improved through an early introduction to multi-variable decisional context and the various approaches for
handling such problems. Lawyers, particularly with either a master's or doctorate degree in business
administration or management, functioning at the legal policy level of decision-making now have some
appreciation for the concepts and analytical techniques of other professions which are currently engaged in
similar types of complex decision-making.

Truth to tell, many situations involving corporate finance problems would require the services of an astute
attorney because of the complex legal implications that arise from each and every necessary step in
securing and maintaining the business issue raised. (Business Star, "Corporate Finance Law," Jan. 11,
1989, p. 4).

In our litigation-prone country, a corporate lawyer is assiduously referred to as the "abogado de campanilla."
He is the "big-time" lawyer, earning big money and with a clientele composed of the tycoons and magnates
of business and industry.

Despite the growing number of corporate lawyers, many people could not explain what it is that a corporate
lawyer does. For one, the number of attorneys employed by a single corporation will vary with the size and
type of the corporation. Many smaller and some large corporations farm out all their legal problems to
private law firms. Many others have in-house counsel only for certain matters. Other corporation have a staff
large enough to handle most legal problems in-house.

A corporate lawyer, for all intents and purposes, is a lawyer who handles the legal affairs of a corporation.
His areas of concern or jurisdiction may include, inter alia: corporate legal research, tax laws research,
acting out as corporate secretary (in board meetings), appearances in both courts and other adjudicatory
agencies (including the Securities and Exchange Commission), and in other capacities which require an
ability to deal with the law.

At any rate, a corporate lawyer may assume responsibilities other than the legal affairs of the business of
the corporation he is representing. These include such matters as determining policy and becoming involved
in management. ( Emphasis supplied.)

In a big company, for example, one may have a feeling of being isolated from the action, or not
understanding how one's work actually fits into the work of the orgarnization. This can be frustrating to
someone who needs to see the results of his work first hand. In short, a corporate lawyer is sometimes
offered this fortune to be more closely involved in the running of the business.

Moreover, a corporate lawyer's services may sometimes be engaged by a multinational corporation (MNC).
Some large MNCs provide one of the few opportunities available to corporate lawyers to enter the
international law field. After all, international law is practiced in a relatively small number of companies and
law firms. Because working in a foreign country is perceived by many as glamorous, tills is an area coveted
by corporate lawyers. In most cases, however, the overseas jobs go to experienced attorneys while the
younger attorneys do their "international practice" in law libraries. (Business Star, "Corporate Law Practice,"
May 25,1990, p. 4).

This brings us to the inevitable, i.e., the role of the lawyer in the realm of finance. To borrow the lines of
Harvard-educated lawyer Bruce Wassertein, to wit: "A bad lawyer is one who fails to spot problems, a good
lawyer is one who perceives the difficulties, and the excellent lawyer is one who surmounts them." (Business
Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).
Today, the study of corporate law practice direly needs a "shot in the arm," so to speak. No longer are we
talking of the traditional law teaching method of confining the subject study to the Corporation Code and the
Securities Code but an incursion as well into the intertwining modern management issues.

Such corporate legal management issues deal primarily with three (3) types of learning: (1) acquisition of
insights into current advances which are of particular significance to the corporate counsel; (2) an
introduction to usable disciplinary skins applicable to a corporate counsel's management responsibilities;
and (3) a devotion to the organization and management of the legal function itself.

These three subject areas may be thought of as intersecting circles, with a shared area linking them.
Otherwise known as "intersecting managerial jurisprudence," it forms a unifying theme for the corporate
counsel's total learning.

Some current advances in behavior and policy sciences affect the counsel's role. For that matter, the
corporate lawyer reviews the globalization process, including the resulting strategic repositioning that the
firms he provides counsel for are required to make, and the need to think about a corporation's; strategy at
multiple levels. The salience of the nation-state is being reduced as firms deal both with global multinational
entities and simultaneously with sub-national governmental units. Firms increasingly collaborate not only
with public entities but with each other — often with those who are competitors in other arenas.

Also, the nature of the lawyer's participation in decision-making within the corporation is rapidly changing.
The modem corporate lawyer has gained a new role as a stakeholder — in some cases participating in the
organization and operations of governance through participation on boards and other decision-making roles.
Often these new patterns develop alongside existing legal institutions and laws are perceived as barriers.
These trends are complicated as corporations organize for global operations. ( Emphasis supplied)

The practising lawyer of today is familiar as well with governmental policies toward the promotion and
management of technology. New collaborative arrangements for promoting specific technologies or
competitiveness more generally require approaches from industry that differ from older, more adversarial
relationships and traditional forms of seeking to influence governmental policies. And there are lessons to be
learned from other countries. In Europe, Esprit, Eureka and Race are examples of collaborative efforts
between governmental and business Japan's MITI is world famous. (Emphasis supplied)

Following the concept of boundary spanning, the office of the Corporate Counsel comprises a distinct group
within the managerial structure of all kinds of organizations. Effectiveness of both long-term and temporary
groups within organizations has been found to be related to indentifiable factors in the group-context
interaction such as the groups actively revising their knowledge of the environment coordinating work with
outsiders, promoting team achievements within the organization. In general, such external activities are
better predictors of team performance than internal group processes.

In a crisis situation, the legal managerial capabilities of the corporate lawyer vis-a-vis the managerial mettle
of corporations are challenged. Current research is seeking ways both to anticipate effective managerial
procedures and to understand relationships of financial liability and insurance considerations. (Emphasis
supplied)

Regarding the skills to apply by the corporate counsel, three factors are apropos:

First System Dynamics. The field of systems dynamics has been found an effective tool for new managerial
thinking regarding both planning and pressing immediate problems. An understanding of the role of
feedback loops, inventory levels, and rates of flow, enable users to simulate all sorts of systematic problems
— physical, economic, managerial, social, and psychological. New programming techniques now make the
system dynamics principles more accessible to managers — including corporate counsels. (Emphasis
supplied)

Second Decision Analysis. This enables users to make better decisions involving complexity and
uncertainty. In the context of a law department, it can be used to appraise the settlement value of litigation,
aid in negotiation settlement, and minimize the cost and risk involved in managing a portfolio of cases.
(Emphasis supplied)
 Third Modeling for Negotiation Management. Computer-based models can be used directly by parties and
mediators in all lands of negotiations. All integrated set of such tools provide coherent and effective
negotiation support, including hands-on on instruction in these techniques. A simulation case of an
international joint venture may be used to illustrate the point.

[Be this as it may,] the organization and management of the legal function, concern three pointed areas of
consideration, thus:

Preventive Lawyering. Planning by lawyers requires special skills that comprise a major part of the general
counsel's responsibilities. They differ from those of remedial law. Preventive lawyering is concerned with
minimizing the risks of legal trouble and maximizing legal rights for such legal entities at that time when
transactional or similar facts are being considered and made.

Managerial Jurisprudence. This is the framework within which are undertaken those activities of the firm to
which legal consequences attach. It needs to be directly supportive of this nation's evolving economic and
organizational fabric as firms change to stay competitive in a global, interdependent environment. The
practice and theory of "law" is not adequate today to facilitate the relationships needed in trying to make a
global economy work.

Organization and Functioning of the Corporate Counsel's Office. The general counsel has emerged in the
last decade as one of the most vibrant subsets of the legal profession. The corporate counsel hear
responsibility for key aspects of the firm's strategic issues, including structuring its global operations,
managing improved relationships with an increasingly diversified body of employees, managing expanded
liability exposure, creating new and varied interactions with public decision-makers, coping internally with
more complex make or by decisions.

This whole exercise drives home the thesis that knowing corporate law is not enough to make one a good
general corporate counsel nor to give him a full sense of how the legal system shapes corporate activities.
And even if the corporate lawyer's aim is not the understand all of the law's effects on corporate activities, he
must, at the very least, also gain a working knowledge of the management issues if only to be able to grasp
not only the basic legal "constitution' or makeup of the modem corporation. "Business Star", "The Corporate
Counsel," April 10, 1991, p. 4).

The challenge for lawyers (both of the bar and the bench) is to have more than a passing knowledge of
financial law affecting each aspect of their work. Yet, many would admit to ignorance of vast tracts of the
financial law territory. What transpires next is a dilemma of professional security: Will the lawyer admit
ignorance and risk opprobrium?; or will he feign understanding and risk exposure? (Business Star,
"Corporate Finance law," Jan. 11, 1989, p. 4).

Respondent Christian Monsod was nominated by President Corazon C. Aquino to the position of Chairman of the
COMELEC in a letter received by the Secretariat of the Commission on Appointments on April 25, 1991. Petitioner
opposed the nomination because allegedly Monsod does not possess the required qualification of having been
engaged in the practice of law for at least ten years.

On June 5, 1991, the Commission on Appointments confirmed the nomination of Monsod as Chairman of the
COMELEC. On June 18, 1991, he took his oath of office. On the same day, he assumed office as Chairman of the
COMELEC.

Challenging the validity of the confirmation by the Commission on Appointments of Monsod's nomination, petitioner
as a citizen and taxpayer, filed the instant petition for certiorari and Prohibition praying that said confirmation and the
consequent appointment of Monsod as Chairman of the Commission on Elections be declared null and void.

Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar examinations of 1960 with a grade
of 86-55%. He has been a dues paying member of the Integrated Bar of the Philippines since its inception in 1972-73.
He has also been paying his professional license fees as lawyer for more than ten years. (p. 124, Rollo)

After graduating from the College of Law (U.P.) and having hurdled the bar, Atty. Monsod worked in the law office of
his father. During his stint in the World Bank Group (1963-1970), Monsod worked as an operations officer for about
two years in Costa Rica and Panama, which involved getting acquainted with the laws of member-countries
negotiating loans and coordinating legal, economic, and project work of the Bank. Upon returning to the Philippines in
1970, he worked with the Meralco Group, served as chief executive officer of an investment bank and subsequently
of a business conglomerate, and since 1986, has rendered services to various companies as a legal and economic
consultant or chief executive officer. As former Secretary-General (1986) and National Chairman (1987) of
NAMFREL. Monsod's work involved being knowledgeable in election law. He appeared for NAMFREL in its
accreditation hearings before the Comelec. In the field of advocacy, Monsod, in his personal capacity and as former
Co-Chairman of the Bishops Businessmen's Conference for Human Development, has worked with the under
privileged sectors, such as the farmer and urban poor groups, in initiating, lobbying for and engaging in affirmative
action for the agrarian reform law and lately the urban land reform bill. Monsod also made use of his legal knowledge
as a member of the Davide Commission, a quast judicial body, which conducted numerous hearings (1990) and as a
member of the Constitutional Commission (1986-1987), and Chairman of its Committee on Accountability of Public
Officers, for which he was cited by the President of the Commission, Justice Cecilia Muñoz-Palma for "innumerable
amendments to reconcile government functions with individual freedoms and public accountability and the party-list
system for the House of Representative. (pp. 128-129 Rollo) ( Emphasis supplied)

Just a word about the work of a negotiating team of which Atty. Monsod used to be a member.

In a loan agreement, for instance, a negotiating panel acts as a team, and which is adequately constituted to
meet the various contingencies that arise during a negotiation. Besides top officials of the Borrower
concerned, there are the legal officer (such as the legal counsel), the finance manager, and an operations
officer (such as an official involved in negotiating the contracts) who comprise the members of the team.
(Guillermo V. Soliven, "Loan Negotiating Strategies for Developing Country Borrowers," Staff Paper No. 2,
Central Bank of the Philippines, Manila, 1982, p. 11). (Emphasis supplied)

After a fashion, the loan agreement is like a country's Constitution; it lays down the law as far as the loan
transaction is concerned. Thus, the meat of any Loan Agreement can be compartmentalized into five (5)
fundamental parts: (1) business terms; (2) borrower's representation; (3) conditions of closing; (4)
covenants; and (5) events of default. (Ibid., p. 13).

In the same vein, lawyers play an important role in any debt restructuring program. For aside from
performing the tasks of legislative drafting and legal advising, they score national development policies as
key factors in maintaining their countries' sovereignty. (Condensed from the work paper, entitled "Wanted:
Development Lawyers for Developing Nations," submitted by L. Michael Hager, regional legal adviser of the
United States Agency for International Development, during the Session on Law for the Development of
Nations at the Abidjan World Conference in Ivory Coast, sponsored by the World Peace Through Law
Center on August 26-31, 1973). ( Emphasis supplied)

Loan concessions and compromises, perhaps even more so than purely renegotiation policies, demand
expertise in the law of contracts, in legislation and agreement drafting and in renegotiation. Necessarily, a
sovereign lawyer may work with an international business specialist or an economist in the formulation of a
model loan agreement. Debt restructuring contract agreements contain such a mixture of technical language
that they should be carefully drafted and signed only with the advise of competent counsel in conjunction
with the guidance of adequate technical support personnel. (See International Law Aspects of the Philippine
External Debts, an unpublished dissertation, U.S.T. Graduate School of Law, 1987, p. 321). ( Emphasis
supplied)

A critical aspect of sovereign debt restructuring/contract construction is the set of terms and conditions
which determines the contractual remedies for a failure to perform one or more elements of the contract. A
good agreement must not only define the responsibilities of both parties, but must also state the recourse
open to either party when the other fails to discharge an obligation. For a compleat debt restructuring
represents a devotion to that principle which in the ultimate analysis is sine qua non for foreign loan
agreements-an adherence to the rule of law in domestic and international affairs of whose kind U.S.
Supreme Court Justice Oliver Wendell Holmes, Jr. once said: "They carry no banners, they beat no drums;
but where they are, men learn that bustle and bush are not the equal of quiet genius and serene mastery."
(See Ricardo J. Romulo, "The Role of Lawyers in Foreign Investments," Integrated Bar of the Philippine
Journal, Vol. 15, Nos. 3 and 4, Third and Fourth Quarters, 1977, p. 265).

Interpreted in the light of the various definitions of the term Practice of law". particularly the modern concept of law
practice, and taking into consideration the liberal construction intended by the framers of the Constitution, Atty.
Monsod's past work experiences as a lawyer-economist, a lawyer-manager, a lawyer-entrepreneur of industry, a
lawyer-negotiator of contracts, and a lawyer-legislator of both the rich and the poor — verily more than satisfy the
constitutional requirement — that he has been engaged in the practice of law for at least ten years.

Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA 327, the Court said:

Appointment is an essentially discretionary power and must be performed by the officer in which it is vested
according to his best lights, the only condition being that the appointee should possess the qualifications
required by law. If he does, then the appointment cannot be faulted on the ground that there are others
better qualified who should have been preferred. This is a political question involving considerations of
wisdom which only the appointing authority can decide. (emphasis supplied)

No less emphatic was the Court in the case of (Central Bank v. Civil Service Commission, 171 SCRA 744) where it
stated:

It is well-settled that when the appointee is qualified, as in this case, and all the other legal requirements are
satisfied, the Commission has no alternative but to attest to the appointment in accordance with the Civil
Service Law. The Commission has no authority to revoke an appointment on the ground that another person
is more qualified for a particular position. It also has no authority to direct the appointment of a substitute of
its choice. To do so would be an encroachment on the discretion vested upon the appointing authority. An
appointment is essentially within the discretionary power of whomsoever it is vested, subject to the only
condition that the appointee should possess the qualifications required by law. ( Emphasis supplied)

The appointing process in a regular appointment as in the case at bar, consists of four (4) stages: (1) nomination; (2)
confirmation by the Commission on Appointments; (3) issuance of a commission (in the Philippines, upon submission
by the Commission on Appointments of its certificate of confirmation, the President issues the permanent
appointment; and (4) acceptance e.g., oath-taking, posting of bond, etc. . . . (Lacson v. Romero, No. L-3081, October
14, 1949; Gonzales, Law on Public Officers, p. 200)

The power of the Commission on Appointments to give its consent to the nomination of Monsod as Chairman of the
Commission on Elections is mandated by Section 1(2) Sub-Article C, Article IX of the Constitution which provides:

The Chairman and the Commisioners shall be appointed by the President with the consent of the
Commission on Appointments for a term of seven years without reappointment. Of those first appointed,
three Members shall hold office for seven years, two Members for five years, and the last Members for three
years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the
predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity.

Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his definition of the practice of law is
the traditional or stereotyped notion of law practice, as distinguished from the modern concept of the
practice of law, which modern connotation is exactly what was intended by the eminent framers of the 1987
Constitution. Moreover, Justice Padilla's definition would require generally a habitual law practice, perhaps
practised two or three times a week and would outlaw say, law practice once or twice a year for ten
consecutive years. Clearly, this is far from the constitutional intent.

Upon the other hand, the separate opinion of Justice Isagani Cruz states that in my written opinion, I made use of a
definition of law practice which really means nothing because the definition says that law practice " . . . is what people
ordinarily mean by the practice of law." True I cited the definition but only by way of sarcasm as evident from my
statement that the definition of law practice by "traditional areas of law practice is essentially tautologous" or defining
a phrase by means of the phrase itself that is being defined.

Justice Cruz goes on to say in substance that since the law covers almost all situations, most individuals, in making
use of the law, or in advising others on what the law means, are actually practicing law. In that sense, perhaps, but
we should not lose sight of the fact that Mr. Monsod is a lawyer, a member of the Philippine Bar, who has been
practising law for over ten years. This is different from the acts of persons practising law, without first becoming
lawyers.
Justice Cruz also says that the Supreme Court can even disqualify an elected President of the Philippines, say, on
the ground that he lacks one or more qualifications. This matter, I greatly doubt. For one thing, how can an action or
petition be brought against the President? And even assuming that he is indeed disqualified, how can the action be
entertained since he is the incumbent President?

We now proceed:

The Commission on the basis of evidence submitted doling the public hearings on Monsod's confirmation, implicitly
determined that he possessed the necessary qualifications as required by law. The judgment rendered by the
Commission in the exercise of such an acknowledged power is beyond judicial interference except only upon a clear
showing of a grave abuse of discretion amounting to lack or excess of jurisdiction. (Art. VIII, Sec. 1 Constitution).
Thus, only where such grave abuse of discretion is clearly shown shall the Court interfere with the Commission's
judgment. In the instant case, there is no occasion for the exercise of the Court's corrective power, since no abuse,
much less a grave abuse of discretion, that would amount to lack or excess of jurisdiction and would warrant the
issuance of the writs prayed, for has been clearly shown.

Additionally, consider the following:

(1) If the Commission on Appointments rejects a nominee by the President, may the Supreme Court reverse
the Commission, and thus in effect confirm the appointment? Clearly, the answer is in the negative.

(2) In the same vein, may the Court reject the nominee, whom the Commission has confirmed? The answer
is likewise clear.

(3) If the United States Senate (which is the confirming body in the U.S. Congress) decides to confirm a
Presidential nominee, it would be incredible that the U.S. Supreme Court would still reverse the U.S. Senate.

Finally, one significant legal maxim is:

We must interpret not by the letter that killeth, but by the spirit that giveth life.

Take this hypothetical case of Samson and Delilah. Once, the procurator of Judea asked Delilah (who was Samson's
beloved) for help in capturing Samson. Delilah agreed on condition that —

No blade shall touch his skin;

No blood shall flow from his veins.

When Samson (his long hair cut by Delilah) was captured, the procurator placed an iron rod burning white-hot two or
three inches away from in front of Samson's eyes. This blinded the man. Upon hearing of what had happened to her
beloved, Delilah was beside herself with anger, and fuming with righteous fury, accused the procurator of reneging on
his word. The procurator calmly replied: "Did any blade touch his skin? Did any blood flow from his veins?" The
procurator was clearly relying on the letter, not the spirit of the agreement.

In view of the foregoing, this petition is hereby DISMISSED.

SO ORDERED.

Fernan, C.J., Griño-Aquino and Medialdea, JJ., concur.

Feliciano, J., I certify that he voted to dismiss the petition. (Fernan, C.J.)

Sarmiento, J., is on leave.

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

 EN BANC

IN THE MATTER OF THE CHARGES A.M. No. 10-7-17-SC

OF PLAGIARISM, ETC., AGAINST
ASSOCIATE JUSTICE MARIANO C.
DEL CASTILLO. Present:
CORONA, C.J.,
CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and
SERENO, JJ.
Promulgated:

October 12, 2010

x --------------------------------------------------------------------------------------- x

DECISION
PER CURIAM:

This case is concerned with charges that, in preparing a decision for the Court, a designated member
plagiarized the works of certain authors and twisted their meanings to support the decision.
The Background Facts

Petitioners Isabelita C. Vinuya and about 70 other elderly women, all members of the Malaya Lolas
Organization, filed with the Court in G.R. No. 162230 a special civil action of certiorari with application
for preliminary mandatory injunction against the Executive Secretary, the Secretary of Foreign Affairs, the
Secretary of Justice, and the Office of the Solicitor General.

Petitioners claimed that in destroying villages in the Philippines during World War II, the Japanese army
systematically raped them and a number of other women, seizing them and holding them in houses or cells
where soldiers repeatedly ravished and abused them.
Petitioners alleged that they have since 1998 been approaching the Executive Department, represented by
the respondent public officials, requesting assistance in filing claims against the Japanese military officers
who established the comfort women stations. But that Department declined, saying that petitioners
individual claims had already been fully satisfied under the Peace Treaty between the Philippines and Japan.

Petitioners wanted the Court to render judgment, compelling the Executive Department to espouse
their claims for official apology and other forms of reparations against Japan before the International Court
of Justice and other international tribunals.

On April 28, 2010, the Court rendered judgment dismissing petitioners action. Justice Mariano C. del
Castillo wrote the decision for the Court. The Court essentially gave two reasons for its decision: it cannot
grant the petition because, first, the Executive Department has the exclusive prerogative under the
Constitution and the law to determine whether to espouse petitioners claim against Japan; and, second, the
Philippines is not under any obligation in international law to espouse their claims.

On June 9, 2010, petitioners filed a motion for reconsideration of the Courts decision. More than a
month later on July 18, 2010, counsel for petitioners, Atty. Herminio Harry Roque, Jr., announced in his
online blog that his clients would file a supplemental petition detailing plagiarism committed by the court
under the second reason it gave for dismissing the petition and that these stolen passages were also twisted
to support the courts erroneous conclusions that the Filipino comfort women of World War Two have no
further legal remedies. The media gave publicity to Atty. Roques announcement.

On July 19, 2010, petitioners filed the supplemental motion for reconsideration that Atty. Roque
announced. It accused Justice Del Castillo of manifest intellectual theft and outright plagiarism[1]when he
wrote the decision for the Court and of twisting the true intents of the plagiarized sources to suit the
arguments of the assailed Judgment.[2] They charged Justice Del Castillo of copying without
acknowledgement certain passages from three foreign articles:

a. A Fiduciary Theory of Jus Cogens by Evan J. Criddle and Evan Fox-Descent,

Yale Journal of International Law (2009);
b. Breaking the Silence: Rape as an International Crime by Mark Ellis, Case
Western Reserve Journal of International Law (2006); and
c. Enforcing Erga Omnes Obligations by Christian J. Tams, Cambridge
University Press (2005).
 Petitioners claim that the integrity of the Courts deliberations in the case has been put into question
by Justice Del Castillos fraud. The Court should thus address and disclose to the public the truth about the
manifest intellectual theft and outright plagiarism[3] that resulted in gross prejudice to the petitioners.

Because of the publicity that the supplemental motion for reconsideration generated, Justice Del
Castillo circulated a letter to his colleagues, subsequently verified, stating that when he wrote the decision
for the Court he had the intent to attribute all sources used in it. He said in the pertinent part:

It must be emphasized that there was every intention to attribute all sources,
whenever due. At no point was there ever any malicious intent to appropriate
anothers work as our own. We recall that this ponencia was thrice included in the
Agenda of the Court en banc. It was deliberated upon during the Baguio session on
April 13, 2010, April 20, 2010 and in Manila on April 27, 2010. Each time, suggestions
were made which necessitated major revisions in the draft. Sources were re-studied,
discussions modified, passages added or deleted. The resulting decision comprises 34
pages with 78 footnotes.

xxxx

As regards the claim of the petitioners that the concepts as contained in the
above foreign materials were twisted, the same remains their opinion which we do not
necessarily share.[4]

On July 27, 2010, the Court En Banc referred the charges against Justice Del Castillo to its
Committee on Ethics and Ethical Standards, chaired by the Chief Justice, for investigation and
recommendation. The Chief Justice designated retired Justice Jose C. Vitug to serve as consultant of the
Committee. He graciously accepted.

On August 2, 2010, the Committee directed petitioners to comment on Justice Del Castillos verified
letter. When this was done, it set the matter for hearing.

In the meantime, on July 19, 2010, Evan Criddle wrote on his blog that he and his co-author Evan
Fox-Descent (referred to jointly as Criddle-Descent) learned of alleged plagiarism involving their work but
Criddles concern, after reading the supplemental motion for reconsideration, was the Courts conclusion that
prohibitions against sexual slavery are not jus cogens or internationally binding norms that treaties cannot
diminish.

On July 23, 2010, Dr. Mark Ellis wrote the Court expressing concern that in mentioning his work,
the Court may have misread the argument [he] made in the article and employed them for cross
purposes. Dr. Ellis said that he wrote the article precisely to argue for appropriate legal remedy for victims
of war crimes.

On August 8, 2010, after the referral of the matter to the Committee for investigation, the Dean of
the University of the Philippines (U.P.) College of Law publicized a Statement from his faculty, claiming
that the Vinuya decision was an extraordinary act of injustice and a singularly reprehensible act of
dishonesty and misrepresentation by the Highest Court of the land. The statement said that Justice Del
Castillo had a deliberate intention to appropriate the original authors work, and that the Courts decision
amounted to an act of intellectual fraud by copying works in order to mislead and deceive.[5]

On August 18, 2010 Mr. Christian J. Tams wrote Chief Justice Renato C. Corona that, although relevant
sentences in the Courts decision were taken from his work, he was given generic reference only in the
footnote and in connection with a citation from another author (Bruno Simma) rather than with respect to
the passages taken from his work. He thought that the form of referencing was inappropriate. Mr. Tams
was also concerned that the decision may have used his work to support an approach to erga omnes concept
(obligations owed by individual States to the community of nations) that is not consistent with what he
advocated.

On August 26, 2010, the Committee heard the parties submissions in the summary manner of administrative
investigations. Counsels from both sides were given ample time to address the Committee and submit their
evidence. The Committee queried them on these.

Counsels for Justice Del Castillo later asked to be heard with the other parties not in attendance so
they could make submissions that their client regarded as sensitive and confidential, involving the drafting
process that went into the making of the Courts decision in the Vinuya case. Petitioners counsels vigorously
objected and the Committee sustained the objection. After consulting Justice Del Castillo, his counsels
requested the Committee to hear the Justices court researcher, whose name need not be mentioned here,
explain the research work that went into the making of the decision in the Vinuya case. The Committee
granted the request.

The researcher demonstrated by Power Point presentation how the attribution of the lifted passages
to the writings of Criddle-Descent and Ellis, found in the beginning drafts of her report to Justice Del
Castillo, were unintentionally deleted. She tearfully expressed remorse at her grievous mistake and grief
for having caused an enormous amount of suffering for Justice Del Castillo and his family.[6]
 On the other hand, addressing the Committee in reaction to the researchers explanation, counsel for
petitioners insisted that lack of intent is not a defense in plagiarism since all that is required is for a writer
to acknowledge that certain words or language in his work were taken from anothers work. Counsel invoked
the Courts ruling in University of the Philippines Board of Regents v. Court of Appeals and Arokiaswamy
William Margaret Celine,[7] arguing that standards on plagiarism in the academe should apply with more
force to the judiciary.

After the hearing, the Committee gave the parties ten days to file their respective memoranda. They
filed their memoranda in due course. Subsequently after deliberation, the Committee submitted its
unanimous findings and recommendations to the Court.

The Issues

This case presents two issues:

1. Whether or not, in writing the opinion for the Court in the Vinuya case, Justice Del Castillo plagiarized
the published works of authors Tams, Criddle-Descent, and Ellis.

2. Whether or not Justice Del Castillo twisted the works of these authors to make it appear that such works
supported the Courts position in the Vinuya decision.

The Courts Rulings

Because of the pending motion for reconsideration in the Vinuya case, the Court like its Committee on
Ethics and Ethical Standards will purposely avoid touching the merits of the Courts decision in that case or
the soundness or lack of soundness of the position it has so far taken in the same. The Court will deal, not
with the essential merit or persuasiveness of the foreign authors works, but how the decision that Justice
Del Castillo wrote for the Court appropriated parts of those works and for what purpose the decision
employed the same.

At its most basic, plagiarism means the theft of another persons language, thoughts, or ideas. To
plagiarize, as it is commonly understood according to Webster, is to take (ideas, writings, etc.) from
(another) and pass them off as ones own.[8] The passing off of the work of another as ones own is thus an
indispensable element of plagiarism.

The Passages from Tams

 Petitioners point out that the Vinuya decision lifted passages from Tams book, Enforcing Erga
Omnes Obligations in International Law (2006) and used them in Footnote 69 with what the author thought
was a mere generic reference. But, although Tams himself may have believed that the footnoting in this
case was not an appropriate form of referencing,[9] he and petitioners cannot deny that the decision did
attribute the source or sources of such passages. Justice Del Castillo did not pass off Tams work as his
own. The Justice primarily attributed the ideas embodied in the passages to Bruno Simma, whom Tams
himself credited for them. Still, Footnote 69 mentioned, apart from Simma, Tams article as another source
of those ideas.

The Court believes that whether or not the footnote is sufficiently detailed, so as to satisfy the
footnoting standards of counsel for petitioners is not an ethical matter but one concerning clarity of
writing. The statement See Tams, Enforcing Obligations Erga Omnes in International Law (2005) in
the Vinuya decision is an attribution no matter if Tams thought that it gave him somewhat less credit than
he deserved. Such attribution altogether negates the idea that Justice Del Castillo passed off the challenged
passages as his own.

That it would have been better had Justice Del Castillo used the introductory phrase cited in rather
than the phrase See would make a case of mere inadvertent slip in attribution rather than a case of manifest
intellectual theft and outright plagiarism. If the Justices citations were imprecise, it would just be a case of
bad footnoting rather than one of theft or deceit. If it were otherwise, many would be target of abuse for
every editorial error, for every mistake in citing pagination, and for every technical detail of form.

The Passages from Ellis

and Criddle-Descent

Petitioners also attack the Courts decision for lifting and using as footnotes, without attribution to
the author, passages from the published work of Ellis. The Court made the following statement on page 27
of its decision, marked with Footnote 65 at the end:

We fully agree that rape, sexual slavery, torture, and sexual violence are morally
reprehensible as well as legally prohibited under contemporary international law. 65 xxx

Footnote 65 appears down the bottom of the page. Since the lengthy passages in that footnote came
almost verbatim from Ellis article,[10] such passages ought to have been introduced by an acknowledgement
that they are from that article. The footnote could very well have read:
 65 In an article, Breaking the Silence: Rape as an International Crime, Case Western Reserve Journal of International
Law (2006), Mark Ellis said: The concept of rape as an international crime is relatively new. This is not to say that rape has
never been historically prohibited, particularly in war. But modern-day sensitivity to the crime of rape did not emerge until
after World War II. In the Nuremberg Charter, the word rape was not mentioned. The article on crimes against humanity
explicitly set forth prohibited acts, but rape was not mentioned by name. (For example, the Treaty of Amity and Commerce
between Prussia and the United States provides that in time of war all women and children shall not be molested in their
persons. The Treaty of Amity and Commerce, Between his Majesty the King of Prussia and the United States of America,
art. 23, Sept. 10, 1785, U.S.-Pruss., 8 TREATIES & OTHER INT'L AGREEMENTS OF THE U.S. 78, 85. The 1863 Lieber
Instructions classified rape as a crime of troop discipline. (Mitchell, The Prohibition of Rape in International Humanitarian
Law as a Norm of Jus cogens: Clarifying the Doctrine, 15 DUKE J. COMP. INTL. L. 219, 224). It specified rape as a capital
crime punishable by the death penalty (Id. at 236). The 1907 Hague Convention protected women by requiring the protection
of their honour. (Family honour and rights, the lives of persons, and private property, as well as religious convictions and
practice, must be respected. Convention (IV) Respecting the Laws & Customs of War on Land, art. 46, Oct. 18, 1907. General
Assembly resolution 95 (I) of December 11, 1946 entitled, Affirmation of the Principles of International Law recognized by
the Charter of the Nrnberg Tribunal; General Assembly document A/64/Add.1 of 1946; SeeAgreement for the Prosecution
and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279. Article
6(c) of the Charter established crimes against humanity as the following:
CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other
inhumane acts committed against any civilian population, before or during the war, or persecutions on political,
racial or religious grounds in execution of or in connection with any crime within the Jurisdiction of the Tribunal,
whether or not in violation of the domestic law of the country where perpetrated.
The Nuremberg Judgment did not make any reference to rape and rape was not prosecuted. (Judge Gabrielle Kirk
McDonald, The International Criminal Tribunals Crime and Punishment in the International Arena,7 ILSA J. INTL.
COMP. L. 667, 676.) However, International Military Tribunal for the Far East prosecuted rape crimes, even though
its Statute did not explicitly criminalize rape. The Far East Tribunal held General Iwane Matsui, Commander Shunroku
Hata and Foreign Minister Hirota criminally responsible for a series of crimes, including rape, committed by persons
under their authority. (THE TOKYO JUDGMENT: JUDGMENT OF THE INTERNATIONAL MILITARY
TRIBUNAL FOR THE FAR EAST 445-54 (1977).
The first mention of rape as a specific crime came in December 1945 when Control Council Law No. 10 included
the term rape in the definition of crimes against humanity. Law No. 10, adopted by the four occupying powers in
Germany, was devised to establish a uniform basis for prosecuting war criminals in German courts. (Control Council
for Germany, Law No. 10: Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity,
Dec. 20, 1945, 3 Official Gazette Control Council for Germany 50, 53 (1946))
The 1949 Geneva Convention Relative to the Treatment of Prisoners of War was the first modern-day international
instrument to establish protections against rape for women. Geneva Convention Relative to the Protection of Civilian
Persons in Time of War, Aug. 12, 1949, art. 27, 6 U.S.T. 3316, 75 U.N.T.S. 287 (entry into force Oct. 20, 1950)
[hereinafter Fourth Geneva Convention].Furthermore, the ICC, the ICTY, and the International Criminal Tribunal for
Rwanda (ICTR) have significantly advanced the crime of rape by enabling it to be prosecuted as genocide, a war crime,
and a crime against humanity.

But, as it happened, the acknowledgment above or a similar introduction was missing

from Footnote 65.

Next, petitioners also point out that the following eight sentences and their accompanying footnotes
appear in text on pages 30-32 of the Vinuya decision:
xxx In international law, the term jus cogens (literally, compelling law) refers
to norms that command peremptory authority, superseding conflicting treaties and
custom. Jus cogens norms are considered peremptory in the sense that they are
mandatory, do not admit derogation, and can be modified only by general
international norms of equivalent authority.71

Early strains of the jus cogens doctrine have existed since the 1700s,72 but peremptory norms
began to attract greater scholarly attention with the publication of Alfred von Verdross's
influential 1937 article, Forbidden Treaties in International Law.73 The recognition of jus
cogens gained even more force in the 1950s and 1960s with the ILCs preparation of the
Vienna Convention on the Law of Treaties (VCLT).74 Though there was a consensus that
certain international norms had attained the status of jus cogens,75 the ILC was unable to
reach a consensus on the proper criteria for identifying peremptory norms.
 After an extended debate over these and other theories of jus cogens, the ILC
concluded ruefully in 1963 that there is not as yet any generally accepted criterion by
which to identify a general rule of international law as having the character of jus
cogens.76 In a commentary accompanying the draft convention, the ILC indicated that
the prudent course seems to be to x x x leave the full content of this rule to be worked
out in State practice and in the jurisprudence of international tribunals.77 Thus,
while the existence of jus cogens in international law is undisputed, no consensus
exists on its substance,77beyond a tiny core of principles and rules.78

Admittedly, the Vinuya decision lifted the above, including their footnotes, from Criddle-Descents
article, A Fiduciary Theory of Jus Cogens.[11] Criddle-Descents footnotes were carried into
the Vinuya decisions own footnotes but no attributions were made to the two authors in those footnotes.

The Explanation

Unless amply explained, the above lifting from the works of Ellis and Criddle-Descent could be
construed as plagiarism. But one of Justice Del Castillos researchers, a court-employed attorney, explained
how she accidentally deleted the attributions, originally planted in the beginning drafts of her report to him,
which report eventually became the working draft of the decision. She said that, for most parts, she did her
research electronically. For international materials, she sourced these mainly from Westlaw, an online
research service for legal and law-related materials to which the Court subscribes.

In the old days, the common practice was that after a Justice would have assigned a case for study
and report, the researcher would source his materials mostly from available law books and published articles
on print. When he found a relevant item in a book, whether for one side of the issue or for the other, he
would place a strip of paper marker on the appropriate page, pencil mark the item, and place the book on
his desk where other relevant books would have piled up. He would later paraphrase or copy the marked
out passages from some of these books as he typed his manuscript on a manual typewriter. This occasion
would give him a clear opportunity to attribute the materials used to their authors or sources.

With the advent of computers, however, as Justice Del Castillos researcher also explained, most
legal references, including the collection of decisions of the Court, are found in electronic diskettes or in
internet websites that offer virtual libraries of books and articles. Here, as the researcher found items that
were relevant to her assignment, she downloaded or copied them into her main manuscript, a smorgasbord
plate of materials that she thought she might need. The researchers technique in this case is not too far
different from that employed by a carpenter. The carpenter first gets the pieces of lumber he would need,
choosing the kinds and sizes suitable to the object he has in mind, say a table. When ready, he would
measure out the portions he needs, cut them out of the pieces of lumber he had collected, and construct his
table. He would get rid of the scraps.

Here, Justice Del Castillos researcher did just that. She electronically cut relevant materials from
books and journals in the Westlaw website and pasted these to a main manuscript in her computer that
contained the issues for discussion in her proposed report to the Justice. She used the Microsoft Word
program.[12] Later, after she decided on the general shape that her report would take, she began pruning
from that manuscript those materials that did not fit, changing the positions in the general scheme of those
that remained, and adding and deleting paragraphs, sentences, and words as her continuing discussions with
Justice Del Castillo, her chief editor, demanded. Parenthetically, this is the standard scheme that computer-
literate court researchers use everyday in their work.

Justice Del Castillos researcher showed the Committee the early drafts of her report in
the Vinuya case and these included the passages lifted from the separate articles of Criddle-Descent and of
Ellis with proper attributions to these authors. But, as it happened, in the course of editing and cleaning up
her draft, the researcher accidentally deleted the attributions.

First Finding

The Court adopts the Committees finding that the researchers explanation regarding the accidental
removal of proper attributions to the three authors is credible. Given the operational properties of the
Microsoft program in use by the Court, the accidental decapitation of attributions to sources of research
materials is not remote.

For most senior lawyers and judges who are not computer literate, a familiar example similar to the
circumstances of the present case would probably help illustrate the likelihood of such an accident
happening. If researcher X, for example, happens to be interested in the inalienable character of juridical
personality in connection with an assignment and if the book of the learned Civilist, Arturo M. Tolentino,
happens to have been published in a website, researcher X would probably show interest in the following
passage from that book:

xxx Both juridical capacity and capacity to act are not rights, but qualities of
persons; hence, they cannot be alienated or renounced.15
xxx
_____________________________
15 3 Von Tuhr 296; 1 Valverde 291.
Because the sentence has a footnote mark (#15) that attributes the idea to other sources, it is evident that
Tolentino did not originate it. The idea is not a product of his intellect. He merely lifted it from Von Tuhr
and Valverde, two reputable foreign authors.

When researcher X copies and pastes the above passage and its footnote into a manuscript-in-the-making
in his computer, the footnote number would, given the computer program in use, automatically change and
adjust to the footnoting sequence of researcher Xs manuscript. Thus, if the preceding footnote in the
manuscript when the passage from Tolentino was pasted on it is 23, Tolentinos footnote would
automatically change from the original Footnote 15 to Footnote 24.

But then, to be of use in his materials-gathering scheme, researcher X would have to tag the
Tolentino passage with a short description of its subject for easy reference. A suitable subject description
would be: The inalienable character of juridical personality.23 The footnote mark, 23 From Tolentino, which
researcher X attaches to the subject tag, serves as reminder to him to attribute the passage in its final form
to Tolentino. After the passage has been tagged, it would now appear like this:

The inalienable character of juridical personality.23

xxx Both juridical capacity and capacity to act are not rights, but qualities of
persons; hence, they cannot be alienated or renounced.24
xxx
_____________________________
23 From Tolentino.

24 3 Von Tuhr 296; 1 Valverde 291.

The tag is of course temporary and would later have to go. It serves but a marker to help researcher
X maneuver the passage into the right spot in his final manuscript.
The mistake of Justice Del Castillos researcher is that, after the Justice had decided what texts,
passages, and citations were to be retained including those from Criddle-Descent and Ellis, and when she
was already cleaning up her work and deleting all subject tags, she unintentionally deleted the footnotes
that went with such tagswith disastrous effect.

To understand this, in Tolentinos example, the equivalent would be researcher Xs removal during
cleanup of the tag, The inalienable character of juridical personality.23, by a simple delete operation, and
the unintended removal as well of the accompanying footnote (#23). The erasure of the footnote eliminates
the link between the lifted passage and its source, Tolentinos book. Only the following would remain in the
manuscript:
 xxx Both juridical capacity and capacity to act are not rights, but qualities of
persons; hence, they cannot be alienated or renounced.43
_____________________________
43 3 Von Tuhr 296; 1 Valverde 291.

As it happened, the Microsoft word program does not have a function that raises an alarm when
original materials are cut up or pruned. The portions that remain simply blend in with the rest of the
manuscript, adjusting the footnote number and removing any clue that what should stick together had just
been severed.

This was what happened in the attributions to Ellis and Criddle-Descent. The researcher deleted
the subject tags and, accidentally, their accompanying footnotes that served as reminder of the sources of
the lifted passages. With 119 sources cited in the decision, the loss of the 2 of them was not easily
detectable.

Petitioners point out, however, that Justice Del Castillos verified letter of July 22, 2010 is
inconsistent with his researchers claim that the omissions were mere errors in attribution. They cite the fact
that the Justice did not disclose his researchers error in that letter despite the latters confession regarding
her mistake even before the Justice sent his letter to the Chief Justice. By denying plagiarism in his letter,
Justice Del Castillo allegedly perjured himself and sought to whitewash the case.[13]

But nothing in the July 22 letter supports the charge of false testimony. Justice Del Castillo merely
explained that there was every intention to attribute all sources whenever due and that there was never any
malicious intent to appropriate anothers work as our own, which as it turns out is a true statement. He
recalled how the Court deliberated upon the case more than once, prompting major revisions in the draft of
the decision. In the process, (s)ources were re-studied, discussions modified, passages added or
deleted. Nothing in the letter suggests a cover-up. Indeed, it did not preclude a researchers inadvertent error.

And it is understandable that Justice Del Castillo did not initially disclose his researchers error. He
wrote the decision for the Court and was expected to take full responsibility for any lapse arising from its
preparation. What is more, the process of drafting a particular decision for the Court is confidential, which
explained his initial request to be heard on the matter without the attendance of the other parties.

Notably, neither Justice Del Castillo nor his researcher had a motive or reason for omitting
attribution for the lifted passages to Criddle-Descent or to Ellis. The latter authors are highly respected
professors of international law. The law journals that published their works have exceptional reputations. It
did not make sense to intentionally omit attribution to these authors when the decision cites an abundance
of other sources. Citing these authors as the sources of the lifted passages would enhance rather than
diminish their informative value. Both Justice Del Castillo and his researcher gain nothing from the
omission. Thus, the failure to mention the works of Criddle-Decent and Ellis was unquestionably due to
inadvertence or pure oversight.

Petitioners of course insist that intent is not material in committing plagiarism since all that a writer
has to do, to avoid the charge, is to enclose lifted portions with quotation marks and acknowledge the
sources from which these were taken.[14] Petitioners point out that the Court should apply to this case the
ruling in University of the Philippines Board of Regents v. Court of Appeals and Arokiaswamy William
Margaret Celine.[15] They argue that standards on plagiarism in the academe should apply with more force
to the judiciary.

But petitioners theory ignores the fact that plagiarism is essentially a form of fraud where intent to
deceive is inherent. Their theory provides no room for errors in research, an unrealistic position considering
that there is hardly any substantial written work in any field of discipline that is free of any mistake. The
theory places an automatic universal curse even on errors that, as in this case, have reasonable and logical
explanations.

Indeed, the 8th edition of Blacks Law Dictionary defines plagiarism as the deliberate and knowing
presentation of another person's original ideas or creative expressions as one's own. [16] Thus, plagiarism
presupposes intent and a deliberate, conscious effort to steal anothers work and pass it off as ones own.

Besides, the Court said nothing in U.P. Board of Regents that would indicate that an intent to pass
off anothers work as ones own is not required in plagiarism. The Court merely affirmed the academic
freedom of a university to withdraw a masters degree that a student obtained based on evidence that she
misappropriated the work of others, passing them off as her own. This is not the case here since, as already
stated, Justice Del Castillo actually imputed the borrowed passages to others.

Second Finding

The Court also adopts the Committees finding that the omission of attributions to Criddle-Descent
and Ellis did not bring about an impression that Justice Del Castillo himself created the passages that he
lifted from their published articles. That he merely got those passages from others remains self-evident,
despite the accidental deletion. The fact is that he still imputed the passages to the sources from which
Criddle-Descent and Ellis borrowed them in the first place.

This is best illustrated in the familiar example above. After the deletion of the subject tag and,
accidentally, its footnote which connects to the source, the lifted passage would appear like this:
xxx Both juridical capacity and capacity to act are not rights, but qualities of
persons; hence, they cannot be alienated or renounced.43
_____________________________
43 3 Von Tuhr 296; 1 Valverde 291.

Although the unintended deletion severed the passages link to Tolentino, the passage remains to be
attributed to Von Tuhr and Valverde, the original sources that Tolentino himself cites. The text and its
footnote reference cancel out any impression that the passage is a creation of researcher X. It is the same
with the passages from Criddle-Descent and Ellis. Because such passages remained attributed by the
footnotes to the authors original sources, the omission of attributions to Criddle-Descent and Ellis gave no
impression that the passages were the creations of Justice Del Castillo. This wholly negates the idea that he
was passing them off as his own thoughts.

True the subject passages in this case were reproduced in the Vinuya decision without placing them
in quotation marks. But such passages are much unlike the creative line from Robert Frost, [17]The woods
are lovely, dark, and deep, but I have promises to keep, and miles to go before I sleep, and miles to go
before I sleep. The passages here consisted of common definitions and terms, abridged history of certain
principles of law, and similar frequently repeated phrases that, in the world of legal literature, already
belong to the public realm.

To paraphrase Bast and Samuels,[18] while the academic publishing model is based on the originality
of the writers thesis, the judicial system is based on the doctrine of stare decisis, which encourages courts
to cite historical legal data, precedents, and related studies in their decisions. The judge is not expected to
produce original scholarship in every respect. The strength of a decision lies in the soundness and general
acceptance of the precedents and long held legal opinions it draws from.

Third Finding

Petitioners allege that the decision twisted the passages from Tams, Criddle-Descent, and Ellis. The
Court adopts the Committees finding that this is not so. Indeed, this allegation of twisting or
misrepresentation remains a mystery to the Court. To twist means to distort or pervert the meaning
of.[19] For example, if one lifts the lyrics of the National Anthem, uses it in his work, and declares that Jose
Palma who wrote it did not love his country, then there is twisting or misrepresentation of what the anthems
lyrics said. Here, nothing in the Vinuya decision said or implied that, based on the lifted passages, authors
Tams, Criddle-Descent, and Ellis supported the Courts conclusion that the Philippines is not under any
obligation in international law to espouse Vinuya et al.s claims.

The fact is that, first, since the attributions to Criddle-Descent and Ellis were accidentally deleted,
it is impossible for any person reading the decision to connect the same to the works of those authors as to
conclude that in writing the decision Justice Del Castillo twisted their intended messages. And, second, the
lifted passages provided mere background facts that established the state of international law at various
stages of its development. These are neutral data that could support conflicting theories regarding whether
or not the judiciary has the power today to order the Executive Department to sue another country or
whether the duty to prosecute violators of international crimes has attained the status of jus cogens.

Considering how it was impossible for Justice Del Castillo to have twisted the meaning of the
passages he lifted from the works of Tams, Criddle-Descent, and Ellis, the charge of twisting or
misrepresentation against him is to say the least, unkind. To be more accurate, however, the charge is
reckless and obtuse.

No Misconduct

On occasions judges and justices have mistakenly cited the wrong sources, failed to use quotation
marks, inadvertently omitted necessary information from footnotes or endnotes. But these do not, in every
case, amount to misconduct. Only errors that are tainted with fraud, corruption, or malice are subject of
disciplinary action.[20] This is not the case here. Justice Del Castillos acts or omissions were not shown to
have been impelled by any of such disreputable motives.[21] If the rule were otherwise, no judge or justice,
however competent, honest, or dedicated he may be, can ever hope to retire from the judiciary with an
unblemished record.[22]

No Inexcusable Negligence

Finally, petitioners assert that, even if they were to concede that the omission was the result of plain
error, Justice Del Castillo is nonetheless guilty of gross inexcusable negligence. They point out that he has
full control and supervision over his researcher and should not have surrendered the writing of the decision
to the latter.[23]
 But this assumes that Justice Del Castillo abdicated the writing of the Vinuya decision to his
researcher, which is contrary to the evidence adduced during the hearing. As his researcher testified, the
Justice set the direction that the research and study were to take by discussing the issues with her, setting
forth his position on those issues, and reviewing and commenting on the study that she was putting together
until he was completely satisfied with it.[24] In every sense, Justice Del Castillo was in control of the writing
of the report to the Court, which report eventually became the basis for the decision, and determined its
final outcome.

Assigning cases for study and research to a court attorney, the equivalent of a law clerk in the
United States Supreme Court, is standard practice in the high courts of all nations. This is dictated by
necessity. With about 80 to 100 cases assigned to a Justice in our Court each month, it would be truly
senseless for him to do all the studies and research, going to the library, searching the internet, checking
footnotes, and watching the punctuations. If he does all these by himself, he would have to allocate at least
one to two weeks of work for each case that has been submitted for decision. The wheels of justice in the
Supreme Court will grind to a halt under such a proposition.

What is important is that, in this case, Justice Del Castillo retained control over the writing of the
decision in the Vinuya case without, however, having to look over his researchers shoulder as she cleaned
up her draft report to ensure that she hit the right computer keys. The Justices researcher was after all
competent in the field of assignment given her. She finished law from a leading law school, graduated third
in her class, served as Editor-in Chief of her schools Law Journal, and placed fourth in the bar examinations
when she took it. She earned a masters degree in International Law and Human Rights from a prestigious
university in the United States under the Global-Hauser program, which counsel for petitioners concedes
to be one of the top post graduate programs on International Law in the world. Justice Del Castillo did not
exercise bad judgment in assigning the research work in the Vinuya case to her.

Can errors in preparing decisions be prevented? Not until computers cease to be operated by human
beings who are vulnerable to human errors. They are hypocrites who believe that the courts should be as
error-free as they themselves are.

Incidentally, in the course of the submission of petitioners exhibits, the Committee noted that
petitioners Exhibit J, the accusing statement of the Faculty of the U.P. College of Law on the allegations of
plagiarism and misinterpretation, was a mere dummy. The whole of the statement was reproduced but the
signatures portion below merely listed the names of 38 faculty members, in solid rows, with the letters Sgd
or signed printed beside the names without exception. These included the name of retired Supreme Court
Justice Vicente V. Mendoza, a U.P. professor.
 Because the Committee declined to admit a mere dummy of Exhibit J, it directed Atty. Roque to
present the signed copy within three days of the August 26 hearing.[25] He complied. As it turned out, the
original statement was signed by only a minority of the faculty members on the list. The set of signatories
that appeared like solid teeth in the dummy turned out to be broken teeth in the original. Since only 37 out
of the 81 on the list signed the document, it does not appear to be a statement of the Faculty but of just some
of its members. And retired Justice V. V. Mendoza did not sign the statement, contrary to what the dummy
represented. The Committee wondered why the Dean submitted a dummy of the signed document when
U.P. has an abundance of copying machines.
Since the above circumstances appear to be related to separate en banc matter concerning the
supposed Faculty statement, there is a need for the Committee to turn over the signed copy of the same to
the en banc for its consideration in relation to that matter.

WHEREFORE, in view of all of the above, the Court:

1. DISMISSES for lack of merit petitioner Vinuya, et al.s charges of plagiarism, twisting of cited
materials, and gross neglect against Justice Mariano C. del Castillo;

2. DIRECTS the Public Information Office to send copies of this decision to Professors Evan J.
Criddle and Evan Fox-Descent, Dr. Mark Ellis, and Professor Christian J. Tams at their known addresses;

3. DIRECTS the Clerk of Court to provide all court attorneys involved in legal research and
reporting with copies of this decision and to enjoin them to avoid editing errors committed in
the Vinuya case while using the existing computer program especially when the volume of citations and
footnoting is substantial; and

4. Finally, DIRECTS the Clerk of Court to acquire the necessary software for use by the Court that
can prevent future lapses in citations and attributions.

Further, the Court DIRECTS the Committee on Ethics and Ethical Standards to turn over to the en
banc the dummy as well as the signed copy of petitioners Exhibit J, entitled Restoring Integrity, a statement
by the Faculty of the University of the Philippines College of Law for the en bancs consideration in relation
to the separate pending matter concerning that supposed Faculty statement.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Baguio City

THIRD DIVISION

G.R. No. 154207 April 27, 2007

FERDINAND A. CRUZ, Petitioner,

vs.
ALBERTO MINA, HON. ELEUTERIO F. GUERRERO and HON. ZENAIDA
LAGUILLES, Respondents.

DECISION

AUSTRIA-MARTINEZ, J.:

Before the Court is a Petition for Certiorari under Rule 65 of the Rules of Court, grounded on pure
questions of law, with Prayer for Preliminary Injunction assailing the Resolution dated May 3, 2002
promulgated by the Regional Trial Court (RTC), Branch 116, Pasay City, in Civil Case No. 02-0137,
which denied the issuance of a writ of preliminary injunction against the Metropolitan Trial Court
(MeTC), Branch 45, Pasay City, in Criminal Case No. 00-1705;1 and the RTC’s Order dated June 5,
2002 denying the Motion for Reconsideration. No writ of preliminary injunction was issued by this
Court.

The antecedents:

On September 25, 2000, Ferdinand A. Cruz (petitioner) filed before the MeTC a formal Entry of
Appearance, as private prosecutor, in Criminal Case No. 00-1705 for Grave Threats, where his
father, Mariano Cruz, is the complaining witness.

The petitioner, describing himself as a third year law student, justifies his appearance as private
prosecutor on the bases of Section 34 of Rule 138 of the Rules of Court and the ruling of the Court
En Banc in Cantimbuhan v. Judge Cruz, Jr.2 that a non-lawyer may appear before the inferior courts
as an agent or friend of a party litigant. The petitioner furthermore avers that his appearance was
with the prior conformity of the public prosecutor and a written authority of Mariano Cruz appointing
him to be his agent in the prosecution of the said criminal case.

However, in an Order dated February 1, 2002, the MeTC denied permission for petitioner to appear
as private prosecutor on the ground that Circular No. 19 governing limited law student practice in
conjunction with Rule 138-A of the Rules of Court (Law Student Practice Rule) should take
precedence over the ruling of the Court laid down in Cantimbuhan; and set the case for continuation
of trial.3

On February 13, 2002, petitioner filed before the MeTC a Motion for Reconsideration seeking to
reverse the February 1, 2002 Order alleging that Rule 138-A, or the Law Student Practice Rule,
does not have the effect of superseding Section 34 of Rule 138, for the authority to interpret the rule
is the source itself of the rule, which is the Supreme Court alone.

In an Order dated March 4, 2002, the MeTC denied the Motion for Reconsideration.
On April 2, 2002, the petitioner filed before the RTC a Petition for Certiorari and Mandamus with
Prayer for Preliminary Injunction and Temporary Restraining Order against the private respondent
and the public respondent MeTC.

After hearing the prayer for preliminary injunction to restrain public respondent MeTC Judge from
proceeding with Criminal Case No. 00-1705 pending the Certiorari proceedings, the RTC, in a
Resolution dated May 3, 2002, resolved to deny the issuance of an injunctive writ on the ground that
the crime of Grave Threats, the subject of Criminal Case No. 00-1705, is one that can be prosecuted
de oficio, there being no claim for civil indemnity, and that therefore, the intervention of a private
prosecutor is not legally tenable.

On May 9, 2002, the petitioner filed before the RTC a Motion for Reconsideration. The petitioner
argues that nowhere does the law provide that the crime of Grave Threats has no civil aspect. And
last, petitioner cites Bar Matter No. 730 dated June 10, 1997 which expressly provides for the
appearance of a non-lawyer before the inferior courts, as an agent or friend of a party litigant, even
without the supervision of a member of the bar.

Pending the resolution of the foregoing Motion for Reconsideration before the RTC, the petitioner
filed a Second Motion for Reconsideration dated June 7, 2002 with the MeTC seeking the reversal of
the March 4, 2002 Denial Order of the said court, on the strength of Bar Matter No. 730, and a
Motion to Hold In Abeyance the Trial dated June 10, 2002 of Criminal Case No. 00-1705 pending the
outcome of the certiorari proceedings before the RTC.

On June 5, 2002, the RTC issued its Order denying the petitioner’s Motion for Reconsideration.

Likewise, in an Order dated June 13, 2002, the MeTC denied the petitioner’s Second Motion for
Reconsideration and his Motion to Hold in Abeyance the Trial on the ground that the RTC had
already denied the Entry of Appearance of petitioner before the MeTC.

On July 30, 2002, the petitioner directly filed with this Court, the instant Petition and assigns the
following errors:

I.

the respondent regional trial court abused its discretion when it resolved to deny the prayer for the
writ of injunction of the herein petitioner despite petitioner having established the necessity of
granting the writ;

II.

THE RESPONDENT TRIAL COURT ABUSED ITS DISCRETION, TANTAMOUNT TO IGNORANCE

OF THE LAW, WHEN IT RESOLVED TO DENY THE PRAYER FOR THE WRIT OF PRELIMINARY
INJUNCTION AND THE SUBSEQUENT MOTION FOR RECONSIDERATION OF THE HEREIN
PETITIONER ON THE BASIS THAT [GRAVE] THREATS HAS NO CIVIL ASPECT, FOR THE SAID
BASIS OF DENIAL IS NOT IN ACCORD WITH THE LAW;

III.

THE RESPONDENT METROPOLITAN TRIAL COURT ABUSED ITS DISCRETION WHEN IT

DENIED THE MOTION TO HOLD IN ABEYANCE TRIAL, WHEN WHAT WAS DENIED BY THE
RESPONDENT REGIONAL TRIAL COURT IS THE ISSUANCE OF THE WRIT OF PRELIMINARY
INJUNCTION and WHEN THE RESPONDENT REGIONAL TRIAL COURT IS YET TO DECIDE ON
THE MERITS OF THE PETITION FOR CERTIORARI;

IV.

THE RESPONDENT COURT[s] ARE CLEARLY IGNORING THE LAW WHEN THEY PATENTLY
REFUSED TO HEED TO [sic] THE CLEAR MANDATE OF THE LAPUT, CANTIMBUHAN AND
BULACAN CASES, AS WELL AS BAR MATTER NO. 730, PROVIDING FOR THE APPEARANCE
OF NON-LAWYERS BEFORE THE LOWER COURTS (MTC’S).4

This Court, in exceptional cases, and for compelling reasons, or if warranted by the nature of the
issues reviewed, may take cognizance of petitions filed directly before it.5

Considering that this case involves the interpretation, clarification, and implementation of Section 34,
Rule 138 of the Rules of Court, Bar Matter No. 730, Circular No. 19 governing law student practice
and Rule 138-A of the Rules of Court, and the ruling of the Court in Cantimbuhan, the Court takes
cognizance of herein petition.

The basic question is whether the petitioner, a law student, may appear before an inferior court as
an agent or friend of a party litigant.

The courts a quo held that the Law Student Practice Rule as encapsulated in Rule 138-A of the
Rules of Court, prohibits the petitioner, as a law student, from entering his appearance in behalf of
his father, the private complainant in the criminal case without the supervision of an attorney duly
accredited by the law school.

Rule 138-A or the Law Student Practice Rule, provides:

RULE 138-A
LAW STUDENT PRACTICE RULE

Section 1. Conditions for Student Practice. – A law student who has successfully completed his 3rd
year of the regular four-year prescribed law curriculum and is enrolled in a recognized law school's
clinical legal education program approved by the Supreme Court, may appear without compensation
in any civil, criminal or administrative case before any trial court, tribunal, board or officer, to
represent indigent clients accepted by the legal clinic of the law school.

Sec. 2. Appearance. – The appearance of the law student authorized by this rule, shall be under the
direct supervision and control of a member of the Integrated Bar of the Philippines duly accredited by
the law school. Any and all pleadings, motions, briefs, memoranda or other papers to be filed, must
be signed by the supervising attorney for and in behalf of the legal clinic.

However, in Resolution6 dated June 10, 1997 in Bar Matter No. 730, the Court En Banc clarified:

The rule, however, is different if the law student appears before an inferior court, where the issues
and procedure are relatively simple. In inferior courts, a law student may appear in his personal
capacity without the supervision of a lawyer. Section 34, Rule 138 provides:

Sec. 34. By whom litigation is conducted. - In the court of a justice of the peace, a party may
conduct his litigation in person, with the aid of an agent or friend appointed by him for that purpose,
or with the aid of an attorney. In any other court, a party may conduct his litigation personally or by
aid of an attorney, and his appearance must be either personal or by a duly authorized member of
the bar.

Thus, a law student may appear before an inferior court as an agent or friend of a party without the
supervision of a member of the bar.7 (Emphasis supplied)

The phrase "In the court of a justice of the peace" in Bar Matter No. 730 is subsequently changed to
"In the court of a municipality" as it now appears in Section 34 of Rule 138, thus:8

SEC. 34. By whom litigation is conducted. — In the Court of a municipality a party may conduct his
litigation in person, with the aid of an agent or friend appointed by him for that purpose, or with the
aid of an attorney. In any other court, a party may conduct his litigation personally or by aid of an
attorney and his appearance must be either personal or by a duly authorized member of the bar.
(Emphasis supplied)

which is the prevailing rule at the time the petitioner filed his Entry of Appearance with the MeTC on
September 25, 2000. No real distinction exists for under Section 6, Rule 5 of the Rules of Court, the
term "Municipal Trial Courts" as used in these Rules shall include Metropolitan Trial Courts,
Municipal Trial Courts in Cities, Municipal Trial Courts, and Municipal Circuit Trial Courts.

There is really no problem as to the application of Section 34 of Rule 138 and Rule 138-A. In the
former, the appearance of a non-lawyer, as an agent or friend of a party litigant, is expressly
allowed, while the latter rule provides for conditions when a law student, not as an agent or a friend
of a party litigant, may appear before the courts.

Petitioner expressly anchored his appearance on Section 34 of Rule 138. The court a quo must have
been confused by the fact that petitioner referred to himself as a law student in his entry of
appearance. Rule 138-A should not have been used by the courts a quo in denying permission to
act as private prosecutor against petitioner for the simple reason that Rule 138-A is not the basis for
the petitioner’s appearance.

Section 34, Rule 138 is clear that appearance before the inferior courts by a non-lawyer is allowed,
irrespective of whether or not he is a law student. As succinctly clarified in Bar Matter No. 730, by
virtue of Section 34, Rule 138, a law student may appear, as an agent or a friend of a party litigant,
without the supervision of a lawyer before inferior courts.

Petitioner further argues that the RTC erroneously held that, by its very nature, no civil liability may
flow from the crime of Grave Threats, and, for this reason, the intervention of a private prosecutor is
not possible.

It is clear from the RTC Decision that no such conclusion had been intended by the RTC. In denying
the issuance of the injunctive court, the RTC stated in its Decision that there was no claim for civil
liability by the private complainant for damages, and that the records of the case do not provide for a
claim for indemnity; and that therefore, petitioner’s appearance as private prosecutor appears to be
legally untenable.

Under Article 100 of the Revised Penal Code, every person criminally liable for a felony is also civilly
liable except in instances when no actual damage results from an offense, such as espionage,
violation of neutrality, flight to an enemy country, and crime against popular representation.9 The
basic rule applies in the instant case, such that when a criminal action is instituted, the civil action for
the recovery of civil liability arising from the offense charged shall be deemed instituted with criminal
action, unless the offended party waives the civil action, reserves the right to institute it separately or
institutes the civil action prior to the criminal action.10

The petitioner is correct in stating that there being no reservation, waiver, nor prior institution of the
civil aspect in Criminal Case No. 00-1705, it follows that the civil aspect arising from Grave Threats
is deemed instituted with the criminal action, and, hence, the private prosecutor may rightfully
intervene to prosecute the civil aspect.

WHEREFORE, the Petition is GRANTED. The assailed Resolution and Order of the Regional Trial
Court, Branch 116, Pasay City are REVERSED and SET ASIDE. The Metropolitan Trial Court,
Branch 45, Pasay City is DIRECTED to ADMIT the Entry of Appearance of petitioner in Criminal
Case No. 00-1705 as a private prosecutor under the direct control and supervision of the public
prosecutor.

No pronouncement as to costs.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

A. M. No. 139 March 28, 1983

RE: ELMO S. ABAD, 1978 Successful Bar Examinee. ATTY. PROCOPIO S. BELTRAN, JR.,
President of the Philippine Trial Lawyers Association, Inc., complainant,
vs.
ELMO S. ABAD, respondent.

ABAD SANTOS, J.:

Charged by Atty. Procopio S. Beltran, Jr., president of the Philippine Trial Lawyers Association, Inc.,
of practicing law without having been previously admitted to the Philippine Bar, Mr. Elmo S. Abad
could not deny and had to admit the practice. In exculpation he gives the following lame explanation:

1. On July 23, 1979, respondent conformably with the Resolution of the Honorable
Supreme Court En Banc dated July 10, 1979, ... prior to his taking the Oath of Office
as a member of the bar, paid his Bar Admission Fee in the amount of P175.00 as
shown by Official Receipt No. 8128792, ... paid his Certification Fee in the amount of
P5.00 as shown by Official Receipt No. 8128793, ... and also paid his Membership
Dues for the year 1979-80 to the Integrated Bar of the Philippines as shown by
Official Receipt No. 83740,... .
2. On July 26, 1979, Atty. Romeo Mendoza, the then Clerk of Court of the Honorable
Supreme Court, included the respondent as among those taking the Oath of Office
as Member of the Bar as shown by a Letter of Request dated July 23, 1979, ...

3. At around Eleven o' clock in the morning of July 26, 1979, while waiting for my turn
to take my Oath as a member of the Bar, I was made to sign my Lawyer's Oath by
one of the Clerk in the Office of the Bar Confidant and while waiting there, Atty.
Romeo Mendoza told me that Chief Justice, the Honorable Enrique M. Fernando
wants to talk to me about the Reply of Mr. Jorge Uy (Deceased) to my Answer to his
Complaint. The Honorable Chief Justice told me that I have to answer the Reply and
for which reason the taking of my Lawyer's Oath was further suspended. *

4. On July 31, 1979, I filed my Reply to Mr. Jorge Uy's Answer with a Prayer that the Honorable Supreme Court
determines my fitness to be a member of the Bar;

5. While waiting for the appropriate action which the Honorable Supreme Court may
take upon my Prayer to determine my fitness to be a member of the Bar, I received a
letter from the Integrated Bar of the Philippines, Quezon City Chapter dated May 10,
1980 informing the respondent of an Annual General Meeting together with my
Statement of Account for the year 1980-1981, ... .

6. Believing that with my signing of the Lawyer's Oath on July 26, 1979 and my Reply
to Mr. Jorge Uy's (Deceased) Answer, the Honorable Supreme Court did not ordered
for the striking of my name in the Roll of Attorneys with the Integrated Bar of the
Philippines and therefore a Member in Good Standing, I paid my membership due
and other assessments to the Integrated Bar of the Philippines, Quezon City
Chapter, as shown by Official Receipt No. 110326 and Official Receipt No. 0948, ... .
Likewise respondent paid his Professional Tax Receipt as shown by Official Receipt
No. 058033 and Official Receipt No. 4601685, ... .

7. On February 28, 1981, the Integrated Bar of the Philippines, Quezon City Chapter
also included the name of the respondent as a Qualified Voter for the election of
officers and directors for the year 1981-1982, ... .

8. Respondent's belief and good faith was further enhanced by the fact that on
January 8, 1981, Complainant Jorge Uy in SBC607 died and herein respondent
submitted a verified Notice and Motion with the Honorable Supreme Court on April
27, 1981; notifying the Court of this fact with a prayer that herein respondent be
allowed to take his Oath as Member of the Bar;

9. Thereafter, respondent was again assessed by the Integrated Bar for his 1981-
1982 membership due and other assessment for which the undersigned paid as
shown by Official Receipt No. 132734 and Official Receipt No. 3363, ... .

10. Respondent likewise paid his Professional Tax Receipt for 1981 as shown by
Official Receipt No. 3195776, ... .

11. Respondent likewise has a Certificate of Membership in the Integrated Bar of the
Philippines as well as a Certificate of Membership in Good Standing with the Quezon
City Chapter of the Integrated Bar of the Philippines, ....
Respondent Abad should know that the circumstances which he has narrated do not constitute his
admission to the Philippine Bar and the right to practise law thereafter. He should know that two
essential requisites for becoming a lawyer still had to be performed, namely: his lawyer's oath to be
administered by this Court and his signature in the Roll of Attorneys. (Rule 138, Secs. 17 and 19,
Rules of Court.)

The proven charge against respondent Abad constitutes contempt of court (Rule 71, Sec. 3(e),
Rules of Court.)

WHEREFORE, Mr. Elmo S. Abad is hereby fined Five Hundred (P500.00) pesos payable to this
Court within ten (10) days from notice failing which he shall serve twenty-five (25) days
imprisonment.

SO ORDERED.

EN BANC

[B. M. No. 1036. June 10, 2003]

DONNA MARIE S. AGUIRRE, complainant, vs. EDWIN L.

RANA, respondent.

DECISION
CARPIO, J.:

The Case

Before one is admitted to the Philippine Bar, he must possess the requisite
moral integrity for membership in the legal profession. Possession of moral
integrity is of greater importance than possession of legal learning. The practice
of law is a privilege bestowed only on the morally fit. A bar candidate who is
morally unfit cannot practice law even if he passes the bar examinations.

The Facts
 Respondent Edwin L. Rana (respondent) was among those who passed the
2000 Bar Examinations.
On 21 May 2001, one day before the scheduled mass oath-taking of
successful bar examinees as members of the Philippine Bar, complainant
Donna Marie Aguirre (complainant) filed against respondent a Petition for
Denial of Admission to the Bar. Complainant charged respondent with
unauthorized practice of law, grave misconduct, violation of law, and grave
misrepresentation.
The Court allowed respondent to take his oath as a member of the Bar
during the scheduled oath-taking on 22 May 2001 at the Philippine International
Convention Center. However, the Court ruled that respondent could not sign
the Roll of Attorneys pending the resolution of the charge against him. Thus,
respondent took the lawyers oath on the scheduled date but has not signed the
Roll of Attorneys up to now.
Complainant charges respondent for unauthorized practice of law and grave
misconduct. Complainant alleges that respondent, while not yet a lawyer,
appeared as counsel for a candidate in the May 2001 elections before the
Municipal Board of Election Canvassers (MBEC) of Mandaon,
Masbate. Complainant further alleges that respondent filed with the MBEC a
pleading dated 19 May 2001 entitled Formal Objection to the Inclusion in the
Canvassing of Votes in Some Precincts for the Office of Vice-Mayor. In this
pleading, respondent represented himself as counsel for and in behalf of Vice
Mayoralty Candidate, George Bunan, and signed the pleading as counsel for
George Bunan (Bunan).
On the charge of violation of law, complainant claims that respondent is a
municipal government employee, being a secretary of the Sangguniang Bayan
of Mandaon, Masbate. As such, respondent is not allowed by law to act as
counsel for a client in any court or administrative body.
On the charge of grave misconduct and misrepresentation, complainant
accuses respondent of acting as counsel for vice mayoralty candidate George
Bunan (Bunan) without the latter engaging respondents services. Complainant
claims that respondent filed the pleading as a ploy to prevent the proclamation
of the winning vice mayoralty candidate.
On 22 May 2001, the Court issued a resolution allowing respondent to take
the lawyers oath but disallowed him from signing the Roll of Attorneys until he
is cleared of the charges against him. In the same resolution, the Court required
respondent to comment on the complaint against him.
 In his Comment, respondent admits that Bunan sought his specific
assistance to represent him before the MBEC. Respondent claims that he
decided to assist and advice Bunan, not as a lawyer but as a person who knows
the law. Respondent admits signing the 19 May 2001 pleading that objected to
the inclusion of certain votes in the canvassing. He explains, however, that he
did not sign the pleading as a lawyer or represented himself as an attorney in
the pleading.
On his employment as secretary of the Sangguniang Bayan, respondent
claims that he submitted his resignation on 11 May 2001 which was allegedly
accepted on the same date. He submitted a copy of the Certification of Receipt
of Revocable Resignation dated 28 May 2001 signed by Vice-Mayor Napoleon
Relox. Respondent further claims that the complaint is politically motivated
considering that complainant is the daughter of Silvestre Aguirre, the losing
candidate for mayor of Mandaon, Masbate. Respondent prays that the
complaint be dismissed for lack of merit and that he be allowed to sign the Roll
of Attorneys.
On 22 June 2001, complainant filed her Reply to respondents Comment and
refuted the claim of respondent that his appearance before the MBEC was only
to extend specific assistance to Bunan. Complainant alleges that on 19 May
2001 Emily Estipona-Hao (Estipona-Hao) filed a petition for proclamation as the
winning candidate for mayor. Respondent signed as counsel for Estipona-Hao
in this petition. When respondent appeared as counsel before the MBEC,
complainant questioned his appearance on two grounds: (1) respondent had
not taken his oath as a lawyer; and (2) he was an employee of the government.
Respondent filed a Reply (Re: Reply to Respondents Comment) reiterating
his claim that the instant administrative case is motivated mainly by political
vendetta.
On 17 July 2001, the Court referred the case to the Office of the Bar
Confidant (OBC) for evaluation, report and recommendation.

OBCs Report and Recommendation

The OBC found that respondent indeed appeared before the MBEC as
counsel for Bunan in the May 2001 elections. The minutes of the MBEC
proceedings show that respondent actively participated in the proceedings. The
OBC likewise found that respondent appeared in the MBEC proceedings even
before he took the lawyers oath on 22 May 2001. The OBC believes that
respondents misconduct casts a serious doubt on his moral fitness to be a
member of the Bar. The OBC also believes that respondents unauthorized
practice of law is a ground to deny his admission to the practice of law. The
OBC therefore recommends that respondent be denied admission to the
Philippine Bar.
On the other charges, OBC stated that complainant failed to cite a law which
respondent allegedly violated when he appeared as counsel for Bunan while he
was a government employee. Respondent resigned as secretary and his
resignation was accepted. Likewise, respondent was authorized by Bunan to
represent him before the MBEC.

The Courts Ruling

We agree with the findings and conclusions of the OBC that respondent
engaged in the unauthorized practice of law and thus does not deserve
admission to the Philippine Bar.
Respondent took his oath as lawyer on 22 May 2001. However, the records
show that respondent appeared as counsel for Bunan prior to 22 May 2001,
before respondent took the lawyers oath. In the pleading entitled Formal
Objection to the Inclusion in the Canvassing of Votes in Some Precincts for the
Office of Vice-Mayor dated 19 May 2001, respondent signed as counsel for
George Bunan. In the first paragraph of the same pleading respondent stated
that he was the (U)ndersigned Counsel for, and in behalf of Vice Mayoralty
Candidate, GEORGE T. BUNAN. Bunan himself wrote the MBEC on 14 May
2001 that he had authorized Atty. Edwin L. Rana as his counsel to represent
him before the MBEC and similar bodies.
On 14 May 2001, mayoralty candidate Emily Estipona-Hao also retained
respondent as her counsel. On the same date, 14 May 2001, Erly D. Hao
informed the MBEC that Atty. Edwin L. Rana has been authorized by
REFORMA LM-PPC as the legal counsel of the party and the candidate of the
said party. Respondent himself wrote the MBEC on 14 May 2001 that he was
entering his appearance as counsel for Mayoralty Candidate Emily
Estipona-Hao and for the REFORMA LM-PPC. On 19 May 2001, respondent
signed as counsel for Estipona-Hao in the petition filed before the MBEC
praying for the proclamation of Estipona-Hao as the winning candidate for
mayor of Mandaon, Masbate.
All these happened even before respondent took the lawyers oath. Clearly,
respondent engaged in the practice of law without being a member of the
Philippine Bar.
 In Philippine Lawyers Association v. Agrava, the Court elucidated that:
[1]

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, conveyancing. In general, all advice to
clients, and all action taken for them in matters connected with the law, incorporation
services, assessment and condemnation services contemplating an appearance before a
judicial body, the foreclosure of a mortgage, enforcement of a creditor's claim in
bankruptcy and insolvency proceedings, and conducting proceedings in attachment,
and in matters of estate and guardianship have been held to constitute law practice, as
do the preparation and drafting of legal instruments, where the work done involves the
determination by the trained legal mind of the legal effect of facts and conditions. (5
Am. Jur. p. 262, 263). (Italics supplied) x x x

In Cayetano v. Monsod, the Court held that practice of law means any
[2]

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 acts which are usually performed by members of the legal profession.
Generally, to practice law is to render any kind of service which requires the
use of legal knowledge or skill.
Verily, respondent was engaged in the practice of law when he appeared in
the proceedings before the MBEC and filed various pleadings, without license
to do so. Evidence clearly supports the charge of unauthorized practice of law.
Respondent called himself counsel knowing fully well that he was not a member
of the Bar. Having held himself out as counsel knowing that he had no authority
to practice law, respondent has shown moral unfitness to be a member of the
Philippine Bar. [3]

The right to practice law is not a natural or constitutional right but is a

privilege. It is limited to persons of good moral character with special
qualifications duly ascertained and certified. The exercise of this privilege
presupposes possession of integrity, legal knowledge, educational attainment,
and even public trust since a lawyer is an officer of the court. A bar candidate
[4]

does not acquire the right to practice law simply by passing the bar
examinations. The practice of law is a privilege that can be withheld even from
one who has passed the bar examinations, if the person seeking admission had
practiced law without a license. [5]

The regulation of the practice of law is unquestionably strict. In Beltran, Jr.

v. Abad, a candidate passed the bar examinations but had not taken his oath
[6]

and signed the Roll of Attorneys. He was held in contempt of court for practicing
law even before his admission to the Bar. Under Section 3 (e) of Rule 71 of the
Rules of Court, a person who engages in the unauthorized practice of law is
liable for indirect contempt of court.
[7]

True, respondent here passed the 2000 Bar Examinations and took the
lawyers oath. However, it is the signing in the Roll of Attorneys that finally
makes one a full-fledged lawyer. The fact that respondent passed the bar
examinations is immaterial. Passing the bar is not the only qualification to
become an attorney-at-law. Respondent should know that two essential
[8]

requisites for becoming a lawyer still had to be performed, namely: his lawyers
oath to be administered by this Court and his signature in the Roll of Attorneys.
[9]

On the charge of violation of law, complainant contends that the law does
not allow respondent to act as counsel for a private client in any court or
administrative body since respondent is the secretary of the Sangguniang
Bayan.
Respondent tendered his resignation as secretary of the Sangguniang
Bayan prior to the acts complained of as constituting unauthorized practice of
law. In his letter dated 11 May 2001 addressed to Napoleon Relox, vice- mayor
and presiding officer of the Sangguniang Bayan, respondent stated that he was
resigning effective upon your acceptance. Vice-Mayor Relox accepted
[10]

respondents resignation effective 11 May 2001. Thus, the evidence does not
[11]

support the charge that respondent acted as counsel for a client while serving
as secretary of the Sangguniang Bayan.
On the charge of grave misconduct and misrepresentation, evidence shows
that Bunan indeed authorized respondent to represent him as his counsel
before the MBEC and similar bodies. While there was no misrepresentation,
respondent nonetheless had no authority to practice law.
WHEREFORE, respondent Edwin L. Rana is DENIED admission to the
Philippine Bar.
SO ORDERED.

EN BANC
QUERY OF ATTY. KAREN M. A.M. No. 08-6-352-RTC
SILVERIO-BUFFE, FORMER
Clerk of Court BRANCH 81,
ROMBLON, ROMBLON ON THE Present:
PROHIBITION FROM PUNO, C.J.,
ENGAGING IN THE PRIVATE
*
PRACTICE OF LAW. QUISUMBING,
*
YNARES-SANTIAGO,
CARPIO,
CORONA,
CARPIO MORALES,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO, and
ABAD, JJ.
Promulgated:
August 19, 2009
x-------------------------------------------------------------------------------------------------------- x

DECISION
BRION, J.:

This administrative matter started as a letter-query dated March 4, 2008 of

Atty. Karen M. Silverio-Buffe (Atty. Buffe) addressed to the Office of the Court
Administrator, which query the latter referred to the Court for consideration. In the
course of its action on the matter, the Court discovered that the query was beyond
pure policy interpretation and referred to the actual situation of Atty. Buffe, and,
hence, was a matter that required concrete action on the factual situation
presented.

The query, as originally framed, related to Section 7(b)(2) of Republic Act

(R.A.) No. 6713, as amended (or the Code of Conduct and Ethical Standards for
Public Officials and Employees). This provision places a limitation on public
officials and employees during their incumbency, and those already separated
from government employment for a period of one (1) year after separation, in
engaging in the private practice of their profession. Section 7(b)(2) of R.A. No. 6713
provides:

SECTION 7. Prohibited Acts and Transactions. In addition to acts

and omissions of public officials and employees now prescribed in the
Constitution and existing laws, the following shall constitute prohibited
acts and transactions of any public official and employee and are hereby
declared to be unlawful:

xxx

(b) Outside employment and other activities related thereto.

Public officials and employees during their incumbency shall not:
xxx
 (2) Engage in the private practice of their profession unless
authorized by the Constitution or law, provided, that such practice will
not conflict or tend to conflict with their official functions; or

xxx

These prohibitions shall continue to apply for a period of one (1)

year after resignation, retirement, or separation from public office,
except in the case of subparagraph (b) (2) above, but the professional
concerned cannot practice his profession in connection with any matter
before the office he used to be with, in which case the one-year
prohibition shall likewise apply.

In her letter-query, Atty. Buffe posed these questions: Why may an

incumbent engage in private practice under (b)(2), assuming the same does not
conflict or tend to conflict with his official duties, but a non-incumbent like myself
cannot, as is apparently prohibited by the last paragraph of Sec. 7? Why is the
former allowed, who is still occupying the very public position that he is liable to
exploit, but a non-incumbent like myself who is no longer in a position of possible
abuse/exploitation cannot?[1]

The query arose because Atty. Buffe previously worked as Clerk of Court VI
of the Regional Trial Court (RTC), Branch 81 of Romblon; she resigned from her
position effective February 1, 2008. Thereafter (and within the one-year period of
prohibition mentioned in the above-quoted provision), she engaged in the private
practice of law by appearing as private counsel in several cases before RTC-Branch
81 of Romblon.

Atty. Buffe alleged that Section 7(b)(2) of R.A. No. 6713 gives preferential
treatment to an incumbent public employee, who may engage in the private
practice of his profession so long as this practice does not conflict or tend to conflict
with his official functions. In contrast, a public official or employee who has retired,
resigned, or has been separated from government service like her, is prohibited
from engaging in private practice on any matter before the office where she used
to work, for a period of one (1) year from the date of her separation from
government employment.

Atty. Buffe further alleged that the intention of the above prohibition is to
remove the exercise of clout, influence or privity to insider information, which the
incumbent public employee may use in the private practice of his profession.
However, this situation did not obtain in her case, since she had already resigned
as Clerk of Court of RTC-Branch 18 of Romblon. She advanced the view that she
could engage in the private practice of law before RTC-Branch 81 of Romblon, so
long as her appearance as legal counsel shall not conflict or tend to conflict with
her former duties as former Clerk of Court of that Branch.

Then Deputy Court Administrator (now Court Administrator) Jose P. Perez

made the following observations when the matter was referred to him:
The general intent of the law, as defined in its title is to uphold the
time-honored principle of public office being a public trust. Section 4
thereof provides for the norms of conduct of public officials and
employees, among others: (a) commitment to public interest; (b)
professionalism; and (c) justness and sincerity. Of particular significance
is the statement under professionalism that [t]hey [public officials and
employees] shall endeavor to discourage wrong perceptions of their
roles as dispensers or peddlers of undue patronage.

Thus, it may be well to say that the prohibition was intended to

avoid any impropriety or the appearance of impropriety which may occur
in any transaction between the retired government employee and his
former colleagues, subordinates or superiors brought about by
familiarity, moral ascendancy or undue influence, as the case may be.[2]
 Subsequently, in a Minute Resolution dated July 15, 2008, we resolved to
refer this case to the Office of the Chief Attorney (OCAT) for evaluation, report and
recommendation.[3] The OCAT took the view that:

The premise of the query is erroneous. She interprets Section 7 (b) (2) as
a blanket authority for an incumbent clerk of court to practice law.
Clearly, there is a misreading of that provision of law.[4]
and further observed:
The confusion apparently lies in the use of the term such practice after
the phrase provided that. It may indeed be misinterpreted as modifying
the phrase engage in the private practice of their profession should be
prefatory sentence that public officials during their incumbency shall not
be disregarded. However, read in its entirety, such practice may only
refer to practice authorized by the Constitution or law or the exception
to the prohibition against the practice of profession. The term law was
intended by the legislature to include a memorandum or a circular or an
administrative order issued pursuant to the authority of law.

xxx

The interpretation that Section 7 (b) (2) generally prohibits

incumbent public officials and employees from engaging in the practice
of law, which is declared therein a prohibited and unlawful act, accords
with the constitutional policy on accountability of public officers stated
in Article XI of the Constitution

xxx
 The policy thus requires public officials and employees to devote full time
public service so that in case of conflict between personal and public
interest, the latter should take precedence over the former.[5][Footnotes
omitted]

With respect to lawyers in the judiciary, the OCAT pointed to Section 5, Canon 3 of
the Code of Conduct for Court Personnel the rule that deals with outside
employment by an incumbent judicial employee and which limits such outside
employment to one that does not require the practice of law.[6] The prohibition to
practice law with respect to any matter where they have intervened while in the
government service is reiterated in Rule 6.03, Canon 6 of the Code of Professional
Responsibility, which governs the conduct of lawyers in the government service.[7]

In view of the OCAT findings and recommendations, we issued

an En Banc Resolution dated November 11, 2008 directing the Court Administrator
to draft and submit to the Court a circular on the practice of profession during
employment and within one year from resignation, retirement from or cessation of
employment in the Judiciary. We likewise required the Executive Judge of the RTC
of Romblon to (i) verify if Atty. Buffe had appeared as counsel during her
incumbency as clerk of court and after her resignation in February 2008, and (ii)
submit to the Court a report on his verification.[8]
In compliance with this our Resolution, Executive Judge Ramiro R. Geronimo
of RTC-Branch 81 of Romblon reported the following appearances made by Atty.
Buffe:

(1) Civil Case No. V-1564, entitled Oscar Madrigal Moreno, Jr. et
al. versus Leonardo M. Macalam, et al. on February 19, 2008, March 4,
2008, April 10, 2008 and July 9, 2008 as counsel for the plaintiffs;
 (2) Civil Case No. V-1620, entitled Melchor M. Manal versus
Zosimo Malasa, et al., on (sic) February, 2008, as counsel for the
plaintiff;

(3) Civil Case No. V-1396, entitled Solomon Y. Mayor versus Jose
J. Mayor, on February 21, 2008, as counsel for the plaintiff; and

(4) Civil Case No. V-1639, entitled Philippine National Bank

versus Sps. Mariano and Olivia Silverio, on April 11, 2008 and July 9,
2008, as counsel for the defendants.

Atty. Buffe herself was furnished a copy of our November 11,

2008 En Banc Resolution and she filed a Manifestation (received by the Court
on February 2, 2009) acknowledging receipt of our November 11,
2008 Resolution. She likewise stated that her appearances are part of Branch 81
records. As well, she informed the Court that she had previously taken the
following judicial remedies in regard to the above query:

1. SCA No. 089119028 (Annex C), filed with Branch 54 of the

RTC Manila, which had been dismissed without prejudice on July 23,
2008 (Annex D) a recourse taken when undersigned was still a private
practitioner;

2. SCA No. 08120423 (Annex A), filed with Branch 17 of the

RTC of Manila, which had been also dismissed (with or without
prejudice) on December 4, 2008 (Annex B) a recourse taken when
undersigned was already a public prosecutor appearing before the
same Branch 81, after she took her oath of office as such on August 15,
2008.[Emphasis supplied]
She also made known her intent to elevate the dismissal of the above cases so that
eventually, the Honorable Supreme Court may put to rest the legal issue/s
presented in the above petitions which is, why is it that R.A. No. 6713, Sec. 7 (b)(2)
and last par. thereof, apparently contains an express prohibition (valid or invalid)
on the private practice of undersigneds law profession, before Branch 81, while on
the other hand not containing a similar, express prohibition in regard to
undersigneds practice of profession, before the same court, as a public prosecutor
within the supposedly restricted 1-year period?

OUR ACTION AND RULING

Preliminary Considerations

As we stated at the outset, this administrative matter confronts us, not

merely with the task of determining how the Court will respond to the query, both
with respect to the substance and form (as the Court does not give interpretative
opinions[9] but can issue circulars and regulations relating to pleading, practice and
procedure in all courts[10] and in the exercise of its administrative supervision over
all courts and personnel thereof[11]), but also with the task of responding to
admitted violations of Section 7 (b)(2) of R.A. No. 6713 and to multiple recourses
on the same subject.

After our directive to the Office of the Court Administrator to issue a circular
on the subject of the query for the guidance of all personnel in the Judiciary, we
consider this aspect of the present administrative matter a finished task, subject
only to confirmatory closure when the OCA reports the completion of the
undertaking to us.

Atty. Buffes admitted appearance, before the very same branch she served
and immediately after her resignation, is a violation that we cannot close our eyes
to and that she cannot run away from under the cover of the letter-query she filed
and her petition for declaratory relief, whose dismissal she manifested she would
pursue up to our level. We note that at the time she filed her letter-query
(on March 4, 2008), Atty. Buffe had already appeared before Branch 81 in at least
three (3) cases. The terms of Section 7 (b)(2) of R.A. No. 6713 did not deter her in
any way and her misgivings about the fairness of the law cannot excuse any
resulting violation she committed. In other words, she took the risk of appearing
before her own Branch and should suffer the consequences of the risk she took.

Nor can she hide behind the two declaratory relief petitions she filed, both
of which were dismissed, and her intent to elevate the dismissal to this Court for
resolution. The first, filed before the RTC, Branch 54, Manila, was dismissed on July
23, 2008 because the court declined to exercise the power to declare rights as
prayed for in the petition, as any decision that may be rendered will be inutile and
will not generally terminate the uncertainty or controversy.[12] The second, filed
with the RTC, Branch 17, Manila, was dismissed for being an inappropriate remedy
after the dismissal ordered by the RTC, Branch 54, Manila, on December 4,
2008.[13] Under these circumstances, we see nothing to deter us from ruling on
Atty. Buffes actions, as no actual court case other than the present administrative
case, is now actually pending on the issue she raised. On the contrary, we see from
Atty. Buffes recourse to this Court and the filing of the two declaratory petitions
the intent to shop for a favorable answer to her query. We shall duly consider this
circumstance in our action on the case.

A last matter to consider before we proceed to the merits of Atty. Buffes

actions relates to possible objections on procedural due process grounds, as we
have not made any formal directive to Atty. Buffe to explain why she should not be
penalized for her appearance before Branch 81 soon after her resignation from that
Branch. The essence of due process is the grant of the opportunity to be heard;
what it abhors is the lack of the opportunity to be heard.[14] The records of this case
show that Atty. Buffe has been amply heard with respect to her actions. She was
notified, and she even responded to our November 11, 2008 directive for the
Executive Judge of the RTC of Romblon to report on Atty. Buffes appearances
before Branch 81; she expressly manifested that these appearances were part of
the Branch records. Her legal positions on these appearances have also been
expressed before this Court; first, in her original letter-query, and subsequently, in
her Manifestation. Thus, no due process consideration needs to deter us from
considering the legal consequences of her appearances in her previous Branch
within a year from her resignation.

The Governing Law: Section 7 of R.A. No. 6713

Section 7 of R.A. No. 6713 generally provides for the prohibited acts and
transactions of public officials and employees. Subsection (b)(2) prohibits them
from engaging in the private practice of their profession during their
incumbency. As an exception, a public official or employee can engage in the
practice of his or her profession under the following conditions: first, the private
practice is authorized by the Constitution or by the law; and second, the practice
will not conflict, or tend to conflict, with his or her official functions.

The Section 7 prohibitions continue to apply for a period of one year after
the public official or employees resignation, retirement, or separation from public
office, except for the private practice of profession under subsection (b)(2), which
can already be undertaken even within the one-year prohibition period. As an
exception to this exception, the one-year prohibited period applies with respect to
any matter before the office the public officer or employee used to work with.

The Section 7 prohibitions are predicated on the principle that public office
is a public trust; and serve to remove any impropriety, real or imagined, which may
occur in government transactions between a former government official or
employee and his or her former colleagues, subordinates or superiors. The
prohibitions also promote the observance and the efficient use of every moment
of the prescribed office hours to serve the public.[15]

Parenthetically, in the case of court employees, Section 7(b)(2) of R.A. No.

6713 is not the only prohibition to contend with; Section 5, Canon 3 of the Code of
Conduct for Court Personnel also applies. The latter provision provides the
definitive rule on the outside employment that an incumbent court official or court
employee may undertake in addition to his official duties:
Outside employment may be allowed by the head of office
provided it complies with all of the following requirements:
(a) The outside employment is not with a person or entity that
practices law before the courts or conducts business with the
Judiciary;
(b) The outside employment can be performed outside of normal
working hours and is not incompatible with the performance
of the court personnels duties and responsibilities;
(c) That outside employment does not require the practice of
law; Provided, however, that court personnel may render
services as professor, lecturer, or resource person in law
schools, review or continuing education centers or similar
institutions;
(d) The outside employment does not require or induce the court
personnel to disclose confidential information acquired while
performing officials duties;
(e) The outside employment shall not be with the legislative or
executive branch of government, unless specifically authorized
by the Supreme Court.

Where a conflict of interest exists, may reasonably appear to exist,

or where the outside employment reflects adversely on the integrity of
the Judiciary, the court personnel shall not accept outside employment.
[Emphasis supplied]

In both the above discussed aspect of R.A. No. 6713 and the quoted
Canon 3, the practice of law is covered; the practice of law is a practice of
profession, while Canon 3 specifically mentions any outside employment
requiring the practice of law. In Cayetano v. Monsod,[16] we defined the practice
of law as any activity, in and out of court, that requires the application of law,
 legal procedure, knowledge, training and experience. Moreover, we ruled that
to engage in the practice of law is to perform those acts which are
characteristics of the profession; 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.[17] Under both provisions, a common objective is to avoid any
conflict of interest on the part of the employee who may wittingly or unwittingly
use confidential information acquired from his employment, or use his or her
familiarity with court personnel still with the previous office.
After separation from the service, Section 5, Canon 3 of the Code of
Conduct for Court Personnel ceases to apply as it applies specifically to
incumbents, but Section 7 and its subsection (b)(2) of R.A. No. 6713 continue to
apply to the extent discussed above. Atty. Buffes situation falls under Section 7.

Atty. Buffes Situation

A distinctive feature of this administrative matter is Atty. Buffes

admission that she immediately engaged in private practice of law within the
one-year period of prohibition stated in Section 7(b)(2) of R.A. No. 6713. We
find it noteworthy, too, that she is aware of this provision and only objects to its
application to her situation; she perceives it to be unfair that she cannot practice
before her old office Branch 81 for a year immediately after resignation, as she
believes that her only limitation is in matters where a conflict of interest exists
between her appearance as counsel and her former duties as Clerk of Court. She
believes that Section 7 (b)(2) gives preferential treatment to incumbent public
officials and employees as against those already separated from government
employment.

Atty. Buffe apparently misreads the law. As the OCAT aptly stated, she
interprets Section 7 (b)(2) as a blanket authority for an incumbent clerk of court
to practice law. We reiterate what we have explained above, that the general
rule under Section 7 (b)(2) is to bar public officials and employees from the
practice of their professions; it is unlawful under this general rule for clerks of
court to practice their profession. By way of exception, they can practice their
profession if the Constitution or the law allows them, but no conflict of interest
must exist between their current duties and the practice of their profession. As
we also mentioned above, no chance exists for lawyers in the Judiciary to
practice their profession, as they are in fact expressly prohibited by Section 5,
Canon 3 of the Code of Conduct for Court Personnel from doing so. Under both
the general rule and the exceptions, therefore, Atty. Buffes basic premise is
misplaced.

As we discussed above, a clerk of court can already engage in the practice

of law immediately after her separation from the service and without any period
limitation that applies to other prohibitions under Section 7 of R.A. No.
6713. The clerk of courts limitation is that she cannot practice her profession
within one year before the office where he or she used to work with. In a
comparison between a resigned, retired or separated official or employee, on
the one hand, and an incumbent official or employee, on the other, the former
has the advantage because the limitation is only with respect to the office he or
she used to work with and only for a period of one year. The incumbent cannot
practice at all, save only where specifically allowed by the Constitution and the
law and only in areas where no conflict of interests exists. This analysis again
disproves Atty. Buffes basic premises.

A worrisome aspect of Atty. Buffes approach to Section 7 (b)(2) is her

awareness of the law and her readiness to risk its violation because of the
unfairness she perceives in the law. We find it disturbing that she first violated
the law before making any inquiry. She also justifies her position by referring to
the practice of other government lawyers known to her who, after separation
from their judicial employment, immediately engaged in the private practice of
law and appeared as private counsels before the RTC branches where they were
previously employed. Again we find this a cavalier attitude on Atty. Buffes part
and, to our mind, only emphasizes her own willful or intentional disregard of
Section 7 (b)(2) of R.A. No. 6713.

By acting in a manner that R.A. No. 6713 brands as unlawful, Atty. Buffe
contravened Rule 1.01 of Canon 1 of the Code of
Professional Responsibility, which provides:
 CANON 1 A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE
LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW AND FOR LEGAL
PROCESSES
xxx
Rule 1.01 A lawyer shall not engage in unlawful, dishonest, immoral or
deceitful conduct.
As indicated by the use of the mandatory word shall, this provision must be
strictly complied with. Atty. Buffe failed to do this, perhaps not with an evil
intent, considering the misgivings she had about Section 7 (b)(2)s
unfairness. Unlawful conduct under Rule 1.01 of Canon 1, however, does not
necessarily require the element of criminality, although the Rule is broad
enough to include it.[18]Likewise, the presence of evil intent on the part of the
lawyer is not essential to bring his or her act or omission within the terms of
Rule 1.01, when it specifically prohibits lawyers from engaging in unlawful
conduct.[19] Thus, we find Atty. Buffe liable under this quoted Rule.

We also find that Atty. Buffe also failed to live up to her lawyers oath and thereby
violated Canon 7 of the Code of Professional Responsibility when she blatantly and
unlawfully practised law within the prohibited period by appearing before the RTC
Branch she had just left. Canon 7 states:
CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY AND
THE DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THE ACTIVITIES
OF THE INTEGRATED BAR. [Emphasis supplied]

By her open disregard of R.A. No. 6713, she thereby followed the
footsteps of the models she cited and wanted to replicate the former court
officials who immediately waded into practice in the very same court they came
from. She, like they, disgraced the dignity of the legal profession by openly
disobeying and disrespecting the law.[20] By her irresponsible conduct, she also
eroded public confidence in the law and in lawyers.[21] Her offense is not in any
way mitigated by her transparent attempt to cover up her transgressions by
writing the Court a letter-query, which she followed up with unmeritorious
petitions for declaratory relief, all of them dealing with the same Section 7 (b)(2)
issue, in the hope perhaps that at some point she would find a ruling favorable
 to her cause. These are acts whose implications do not promote public
confidence in the integrity of the legal profession.[22]

Considering Atty. Buffes ready admission of violating Section 7(b)(2), the

principle of res ipsa loquitur finds application, making her administratively liable for
violation of Rule 1.01 of Canon 1 and Canon 7 of the Code of Professional
Responsibility.[23] In several cases, the Court has disciplined lawyers without further
inquiry or resort to any formal investigation where the facts on record sufficiently
provided the basis for the determination of their administrative liability.

In Prudential Bank v. Castro,[24] the Court disbarred a lawyer without need of any
further investigation after considering his actions based on records showing his
unethical misconduct; the misconduct not only cast dishonor on the image of both
the Bench and the Bar, but was also inimical to public interest and welfare. In this
regard, the Court took judicial notice of several cases handled by the errant lawyer
and his cohorts that revealed their modus operandi in circumventing the payment
of the proper judicial fees for the astronomical sums they claimed in their
cases.[25] The Court held that those cases sufficiently provided the basis for the
determination of respondents' administrative liability, without need for further
inquiry into the matter under the principle of res ipsa loquitur.[26]

Also on the basis of this principle, we ruled in Richards v. Asoy,[27] that no

evidentiary hearing is required before the respondent may be disciplined for
professional misconduct already established by the facts on record.

We applied the principle of res ipsa loquitur once more in In re: Wenceslao
Laureta[28] where we punished a lawyer for grave professional misconduct solely
based on his answer to a show-cause order for contempt and without going into a
trial-type hearing. We ruled then that due process is satisfied as long as the
opportunity to be heard is given to the person to be disciplined.[29]
Likewise in Zaldivar v. Gonzales,[30] the respondent was disciplined and punished
for contempt for his slurs regarding the Courts alleged partiality, incompetence and
lack of integrity on the basis of his answer in a show-cause order for contempt. The
Court took note that the respondent did not deny making the negative imputations
against the Court through the media and even acknowledged the correctness of his
degrading statements. Through a per curiam decision, we justified imposing upon
him the penalty of suspension in the following tenor:

The power to punish for contempt of court does not exhaust the scope
of disciplinary authority of the Court over lawyers. The disciplinary
authority of the Court over members of the Bar is but corollary to the
Court's exclusive power of admission to the Bar. A lawyer is not merely a
professional but also an officer of the court and as such, he is called upon
to share in the task and responsibility of dispensing justice and resolving
disputes in society. Any act on his part which visibly tends to obstruct,
pervert, or impede and degrade the administration of justice constitutes
both professional misconduct calling for the exercise of disciplinary
action against him, and contumacious conduct warranting application of
the contempt power.[31]

These cases clearly show that the absence of any formal charge against and/or
formal investigation of an errant lawyer do not preclude the Court from
immediately exercising its disciplining authority, as long as the errant lawyer or
judge has been given the opportunity to be heard. As we stated earlier, Atty. Buffe
has been afforded the opportunity to be heard on the present matter through her
letter-query and Manifestation filed before this Court.

A member of the bar may be penalized, even disbarred or suspended from

his office as an attorney, for violation of the lawyers oath and/or for breach of the
ethics of the legal profession as embodied in the Code of Professional
Responsibility.[32] The appropriate penalty on an errant lawyer depends on the
exercise of sound judicial discretion based on the surrounding facts.[33]
 In this case, we cannot discern any mitigating factors we can apply, save
OCATs observation that Atty Buffes letter-query may really reflect a
misapprehension of the parameters of the prohibition on the practice of the law
profession under Section 7 (b) (2) of R.A. No. 6713. Ignorance of the law, however,
is no excuse, particularly on a matter as sensitive as practice of the legal profession
soon after ones separation from the service. If Atty. Buffe is correct in the examples
she cited, it is time to ring the bell and to blow the whistle signaling that we cannot
allow this practice to continue.

As we observed earlier,[34] Atty. Buffe had no qualms about the simultaneous

use of various fora in expressing her misgivings about the perceived unfairness of
Section 7 of R.A. 6713. She formally lodged a query with the Office of the Court
Administrator, and soon after filed her successive petitions for declaratory
relief. Effectively, she exposed these fora to the possibility of embarrassment and
confusion through their possibly differing views on the issue she posed. Although
this is not strictly the forum-shopping that the Rules of Court prohibit, what she has
done is something that we cannot help but consider with disfavor because of the
potential damage and embarrassment to the Judiciary that it could have
spawned. This is a point against Atty. Buffe that cancels out the leniency we might
have exercised because of the OCATs observation about her ignorance of and
misgivings on the extent of the prohibition after separation from the service.

Under the circumstances, we find that her actions merit a penalty of fine
of P10,000.00, together with a stern warning to deter her from repeating her
transgression and committing other acts of professional misconduct.[35] This
penalty reflects as well the Courts sentiments on how seriously the retired,
resigned or separated officers and employees of the Judiciary should regard and
observe the prohibition against the practice of law with the office that they used
to work with.
 WHEREFORE, premises considered, we find Atty. Karen M. Silverio-
Buffe GUILTY of professional misconduct for violating Rule 1.01 of Canon 1 and
Canon 7 of the Code of Professional Responsibility. She is hereby FINED in the
amount of Ten Thousand Pesos (P10,000.00), and STERNLY WARNED that a
repetition of this violation and the commission of other acts of professional
misconduct shall be dealt with more severely.

Let this Decision be noted in Atty. Buffes record as a member of the Bar.

SO ORDERED.