G.R. No.

100113 September 3, 1991

RENATO CAYETANO, petitioner,

vs.
CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON APPOINTMENT, and
HON. GUILLERMO CARAGUE, in his capacity as Secretary of Budget and
Management, respondents.

Renato L. Cayetano for and in his own behalf.

Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.

PARAS, J.:

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

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

There shall be a Commission on Elections composed of a Chairman and six Commissioners

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

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

There shall be an independent Commission on Elections composed of a Chairman and eight

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

Regrettably, however, there seems to be no jurisprudence as to what constitutes practice of law as a

legal qualification to an appointive office.

Black defines "practice of law" as:

The rendition of services requiring the knowledge and the application of legal principles and
technique to serve the interest of another with his consent. It is not limited to appearing in
court, or advising and assisting in the conduct of litigation, but embraces the preparation of
pleadings, and other papers incident to actions and special proceedings, conveyancing, the
preparation of legal instruments of all kinds, and the giving of all legal advice to clients. It
embraces all advice to clients and all actions taken for them in matters connected with the law.
An attorney engages in the practice of law by maintaining an office where he is held out to be-
an attorney, using a letterhead describing himself as an attorney, counseling clients in legal
matters, negotiating with opposing counsel about pending litigation, and fixing and collecting
fees for services rendered by his associate. (Black's Law Dictionary, 3rd ed.)
The practice of law is not limited to the conduct of cases in court. (Land Title Abstract and Trust Co.
v. Dworken, 129 Ohio St. 23, 193 N.E. 650) A person is also considered to be in the practice of law
when he:

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

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

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

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

The University of the Philippines Law Center in conducting orientation briefing for new lawyers (1974-
1975) listed the dimensions of the practice of law in even broader terms as advocacy, counselling and
public service.
 One may be a practicing attorney in following any line of employment in the profession. If what
he does exacts knowledge of the law and is of a kind usual for attorneys engaging in the active
practice of their profession, and he follows some one or more lines of employment such as
this he is a practicing attorney at law within the meaning of the statute. (Barr v. Cardell, 155
NW 312)

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

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

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

THE PRESIDING OFFICER (Mr. Jamir).

The Commissioner will please proceed.

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

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

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

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

MR. FOZ. Yes, Mr. Presiding Officer.

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

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

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

MR. FOZ. Yes, Mr. Presiding Officer.

MR. OPLE. Thank you.

... ( Emphasis supplied)

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

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

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

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

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

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

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

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

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

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

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

Constructive adjustment to major corporate problems of today requires an accurate

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

In a complex legal problem the mass of information to be processed, the sorting and weighing
of significant conditional factors, the appraisal of major trends, the necessity of estimating the
consequences of given courses of action, and the need for fast decision and response in
situations of acute danger have prompted the use of sophisticated concepts of information flow
theory, operational analysis, automatic data processing, and electronic computing equipment.
Understandably, an improved decisional structure must stress the predictive component of the
policy-making process, wherein a "model", of the decisional context or a segment thereof is
developed to test projected alternative courses of action in terms of futuristic effects flowing
therefrom.
Although members of the legal profession are regularly engaged in predicting and projecting
the trends of the law, the subject of corporate finance law has received relatively little
organized and formalized attention in the philosophy of advancing corporate legal education.
Nonetheless, a cross-disciplinary approach to legal research has become a vital necessity.

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

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

In our litigation-prone country, a corporate lawyer is assiduously referred to as the "abogado

de campanilla." He is the "big-time" lawyer, earning big money and with a clientele composed
of the tycoons and magnates of business and industry.

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

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

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

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

Moreover, a corporate lawyer's services may sometimes be engaged by a multinational

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

This brings us to the inevitable, i.e., the role of the lawyer in the realm of finance. To borrow
the lines of Harvard-educated lawyer Bruce Wassertein, to wit: "A bad lawyer is one who fails
to spot problems, a good lawyer is one who perceives the difficulties, and the excellent lawyer
is one who surmounts them." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).

Today, the study of corporate law practice direly needs a "shot in the arm," so to speak. No
longer are we talking of the traditional law teaching method of confining the subject study to
the Corporation Code and the Securities Code but an incursion as well into the intertwining
modern management issues.

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

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

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

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

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

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

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

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

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

Second Decision Analysis. This enables users to make better decisions involving complexity
and uncertainty. In the context of a law department, it can be used to appraise the settlement
value of litigation, aid in negotiation settlement, and minimize the cost and risk involved in
managing a portfolio of cases. (Emphasis supplied)

Third Modeling for Negotiation Management. Computer-based models can be used directly by
parties and mediators in all lands of negotiations. All integrated set of such tools provide
coherent and effective negotiation support, including hands-on on instruction in these
techniques. A simulation case of an international joint venture may be used to illustrate the
point.

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

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

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

Organization and Functioning of the Corporate Counsel's Office. The general counsel has
emerged in the last decade as one of the most vibrant subsets of the legal profession. The
corporate counsel hear responsibility for key aspects of the firm's strategic issues, including
structuring its global operations, managing improved relationships with an increasingly
diversified body of employees, managing expanded liability exposure, creating new and varied
interactions with public decision-makers, coping internally with more complex make or by
decisions.
 This whole exercise drives home the thesis that knowing corporate law is not enough to make
one a good general corporate counsel nor to give him a full sense of how the legal system
shapes corporate activities. And even if the corporate lawyer's aim is not the understand all of
the law's effects on corporate activities, he must, at the very least, also gain a working
knowledge of the management issues if only to be able to grasp not only the basic legal
"constitution' or makeup of the modem corporation. "Business Star", "The Corporate Counsel,"
April 10, 1991, p. 4).

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

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

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

Challenging the validity of the confirmation by the Commission on Appointments of Monsod's

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

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

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

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

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

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

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

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

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

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

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

Appointment is an essentially discretionary power and must be performed by the officer in

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

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

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

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

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

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

Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his definition of the
practice of law is the traditional or stereotyped notion of law practice, as distinguished from the
modern concept of the practice of law, which modern connotation is exactly what was intended
by the eminent framers of the 1987 Constitution. Moreover, Justice Padilla's definition would
require generally a habitual law practice, perhaps practised two or three times a week
and would outlaw say, law practice once or twice a year for ten consecutive years. Clearly,
this is far from the constitutional intent.
Upon the other hand, the separate opinion of Justice Isagani Cruz states that in my written opinion, I
made use of a definition of law practice which really means nothing because the definition says that
law practice " . . . is what people ordinarily mean by the practice of law." True I cited the definition but
only by way of sarcasm as evident from my statement that the definition of law practice by "traditional
areas of law practice is essentially tautologous" or defining a phrase by means of the phrase itself that
is being defined.

Justice Cruz goes on to say in substance that since the law covers almost all situations, most
individuals, in making use of the law, or in advising others on what the law means, are actually
practicing law. In that sense, perhaps, but we should not lose sight of the fact that Mr. Monsod is a
lawyer, a member of the Philippine Bar, who has been practising law for over ten years. This is different
from the acts of persons practising law, without first becoming lawyers.

Justice Cruz also says that the Supreme Court can even disqualify an elected President of the
Philippines, say, on the ground that he lacks one or more qualifications. This matter, I greatly doubt.
For one thing, how can an action or petition be brought against the President? And even assuming
that he is indeed disqualified, how can the action be entertained since he is the incumbent President?

We now proceed:

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

Additionally, consider the following:

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

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

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

Finally, one significant legal maxim is:

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

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

No blade shall touch his skin;

 No blood shall flow from his veins.

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

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

SO ORDERED.

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

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

Sarmiento, J., is on leave.

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

Separate Opinions

NARVASA, J., concurring:

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

PADILLA, J., dissenting:

The records of this case will show that when the Court first deliberated on the Petition at bar, I voted
not only to require the respondents to comment on the Petition, but I was the sole vote for the issuance
of a temporary restraining order to enjoin respondent Monsod from assuming the position of
COMELEC Chairman, while the Court deliberated on his constitutional qualification for the office. My
purpose in voting for a TRO was to prevent the inconvenience and even embarrassment to all parties
concerned were the Court to finally decide for respondent Monsod's disqualification. Moreover, a
reading of the Petition then in relation to established jurisprudence already showed prima facie that
respondent Monsod did not possess the needed qualification, that is, he had not engaged in the
practice of law for at least ten (10) years prior to his appointment as COMELEC Chairman.
After considering carefully respondent Monsod's comment, I am even more convinced that the
constitutional requirement of "practice of law for at least ten (10) years" has not been met.

The procedural barriers interposed by respondents deserve scant consideration because, ultimately,
the core issue to be resolved in this petition is the proper construal of the constitutional provision
requiring a majority of the membership of COMELEC, including the Chairman thereof to "have been
engaged in the practice of law for at least ten (10) years." (Art. IX(C), Section 1(1), 1987 Constitution).
Questions involving the construction of constitutional provisions are best left to judicial resolution. As
declared in Angara v. Electoral Commission, (63 Phil. 139) "upon the judicial department is thrown the
solemn and inescapable obligation of interpreting the Constitution and defining constitutional
boundaries."

The Constitution has imposed clear and specific standards for a COMELEC Chairman. Among these
are that he must have been "engaged in the practice of law for at least ten (10) years." It is the bounden
duty of this Court to ensure that such standard is met and complied with.

What constitutes practice of law? As commonly understood, "practice" refers to the actual performance
or application of knowledge as distinguished from mere possession of knowledge; it connotes
an active, habitual, repeated or customary action.1 To "practice" law, or any profession for that matter,
means, to exercise or pursue an employment or profession actively, habitually,
repeatedly or customarily.

Therefore, a doctor of medicine who is employed and is habitually performing the tasks of a nursing
aide, cannot be said to be in the "practice of medicine." A certified public accountant who works as a
clerk, cannot be said to practice his profession as an accountant. In the same way, a lawyer who is
employed as a business executive or a corporate manager, other than as head or attorney of a Legal
Department of a corporation or a governmental agency, cannot be said to be in the practice of law.

As aptly held by this Court in the case of People vs. Villanueva:2

Practice is more than an isolated appearance for it consists in frequent or customary actions,
a succession of acts of the same kind. In other words, it is frequent habitual exercise (State
vs- Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall within the
prohibition of statute has been interpreted as customarily or habitually holding one's self out
to the public as a lawyer and demanding payment for such services (State vs. Bryan, 4 S.E.
522, 98 N.C. 644,647.) ... (emphasis supplied).

It is worth mentioning that the respondent Commission on Appointments in a Memorandum it

prepared, enumerated several factors determinative of whether a particular activity constitutes
"practice of law." It states:

1. Habituality. The term "practice of law" implies customarily or habitually holding one's self
out to the public as a lawyer (People vs. Villanueva, 14 SCRA 109 citing State v. Boyen, 4
S.E. 522, 98 N.C. 644) such as when one sends a circular announcing the establishment of a
law office for the general practice of law (U.S. v. Ney Bosque, 8 Phil. 146), or when one takes
the oath of office as a lawyer before a notary public, and files a manifestation with the Supreme
Court informing it of his intention to practice law in all courts in the country (People v. De Luna,
102 Phil. 968).

Practice is more than an isolated appearance for it consists in frequent or customary action, a
succession of acts of the same kind. In other words, it is a habitual exercise (People v.
Villanueva, 14 SCRA 109 citing State v. Cotner, 127, p. 1, 87 Kan, 864).
 2. Compensation. Practice of law implies that one must have presented himself to be in the
active and continued practice of the legal profession and that his professional services are
available to the public for compensation, as a service of his livelihood or in consideration of
his said services. (People v. Villanueva, supra). Hence, charging for services such as
preparation of documents involving the use of legal knowledge and skill is within the term
"practice of law" (Ernani Paño, Bar Reviewer in Legal and Judicial Ethics, 1988 ed., p. 8 citing
People v. People's Stockyards State Bank, 176 N.B. 901) and, one who renders an opinion as
to the proper interpretation of a statute, and receives pay for it, is to that extent, practicing law
(Martin, supra, p. 806 citing Mendelaun v. Gilbert and Barket Mfg. Co., 290 N.Y.S. 462) If
compensation is expected, all advice to clients and all action taken for them in matters
connected with the law; are practicing law. (Elwood Fitchette et al., v. Arthur C. Taylor, 94A-
L.R. 356-359)

3. Application of law legal principle practice or procedure which calls for legal knowledge,
training and experience is within the term "practice of law". (Martin supra)

4. Attorney-client relationship. Engaging in the practice of law presupposes the existence of

lawyer-client relationship. Hence, where a lawyer undertakes an activity which requires
knowledge of law but involves no attorney-client relationship, such as teaching law or writing
law books or articles, he cannot be said to be engaged in the practice of his profession or a
lawyer (Agpalo, Legal Ethics, 1989 ed., p. 30).3

The above-enumerated factors would, I believe, be useful aids in determining whether or not
respondent Monsod meets the constitutional qualification of practice of law for at least ten (10) years
at the time of his appointment as COMELEC Chairman.

The following relevant questions may be asked:

1. Did respondent Monsod perform any of the tasks which are peculiar to the practice of law?

2. Did respondent perform such tasks customarily or habitually?

3. Assuming that he performed any of such tasks habitually, did he do so HABITUALLY FOR AT
LEAST TEN (10) YEARS prior to his appointment as COMELEC Chairman?

Given the employment or job history of respondent Monsod as appears from the records, I am
persuaded that if ever he did perform any of the tasks which constitute the practice of law, he did not
do so HABITUALLY for at least ten (10) years prior to his appointment as COMELEC Chairman.

While it may be granted that he performed tasks and activities which could be latitudinarianly
considered activities peculiar to the practice of law, like the drafting of legal documents and the
rendering of legal opinion or advice, such were isolated transactions or activities which do not qualify
his past endeavors as "practice of law." To become engaged in the practice of law, there must be
a continuity, or a succession of acts. As observed by the Solicitor General in People vs. Villanueva:4

Essentially, the word private practice of law implies that one must have presented himself to
be in the activeand continued practice of the legal profession and that his professional
services are available to the public for a compensation, as a source of his livelihood or in
consideration of his said services.
ACCORDINGLY, my vote is to GRANT the petition and to declare respondent Monsod as not qualified
for the position of COMELEC Chairman for not having engaged in the practice of law for at least ten
(10) years prior to his appointment to such position.

CRUZ, J., dissenting:

I am sincerely impressed by the ponencia of my brother Paras but find I must dissent just the same.
There are certain points on which I must differ with him while of course respecting hisviewpoint.

To begin with, I do not think we are inhibited from examining the qualifications of the respondent simply
because his nomination has been confirmed by the Commission on Appointments. In my view, this is
not a political question that we are barred from resolving. Determination of the appointee's credentials
is made on the basis of the established facts, not the discretion of that body. Even if it were, the
exercise of that discretion would still be subject to our review.

In Luego, which is cited in the ponencia, what was involved was the discretion of the appointing
authority to choosebetween two claimants to the same office who both possessed the required
qualifications. It was that kind of discretion that we said could not be reviewed.

If a person elected by no less than the sovereign people may be ousted by this Court for lack of the
required qualifications, I see no reason why we cannot disqualified an appointee simply because he
has passed the Commission on Appointments.

Even the President of the Philippines may be declared ineligible by this Court in an appropriate
proceeding notwithstanding that he has been found acceptable by no less than the enfranchised
citizenry. The reason is that what we would be examining is not the wisdom of his election but whether
or not he was qualified to be elected in the first place.

Coming now to the qualifications of the private respondent, I fear that the ponencia may have been
too sweeping in its definition of the phrase "practice of law" as to render the qualification practically
toothless. From the numerous activities accepted as embraced in the term, I have the uncomfortable
feeling that one does not even have to be a lawyer to be engaged in the practice of law as long as his
activities involve the application of some law, however peripherally. The stock broker and the
insurance adjuster and the realtor could come under the definition as they deal with or give advice on
matters that are likely "to become involved in litigation."

The lawyer is considered engaged in the practice of law even if his main occupation is another
business and he interprets and applies some law only as an incident of such business. That covers
every company organized under the Corporation Code and regulated by the SEC under P.D. 902-A.
Considering the ramifications of the modern society, there is hardly any activity that is not affected by
some law or government regulation the businessman must know about and observe. In fact, again
going by the definition, a lawyer does not even have to be part of a business concern to be considered
a practitioner. He can be so deemed when, on his own, he rents a house or buys a car or consults a
doctor as these acts involve his knowledge and application of the laws regulating such transactions. If
he operates a public utility vehicle as his main source of livelihood, he would still be deemed engaged
in the practice of law because he must obey the Public Service Act and the rules and regulations of
the Energy Regulatory Board.

The ponencia quotes an American decision defining the practice of law as the "performance of any
acts ... in or out of court, commonly understood to be the practice of law," which tells us absolutely
nothing. The decision goes on to say that "because lawyers perform almost every function known in
the commercial and governmental realm, such a definition would obviously be too global to be
workable."

The effect of the definition given in the ponencia is to consider virtually every lawyer to be engaged in
the practice of law even if he does not earn his living, or at least part of it, as a lawyer. It is enough
that his activities are incidentally (even if only remotely) connected with some law, ordinance, or
regulation. The possible exception is the lawyer whose income is derived from teaching ballroom
dancing or escorting wrinkled ladies with pubescent pretensions.

The respondent's credentials are impressive, to be sure, but they do not persuade me that he has
been engaged in the practice of law for ten years as required by the Constitution. It is conceded that
he has been engaged in business and finance, in which areas he has distinguished himself, but as an
executive and economist and not as a practicing lawyer. The plain fact is that he has occupied the
various positions listed in his resume by virtue of his experience and prestige as a businessman and
not as an attorney-at-law whose principal attention is focused on the law. Even if it be argued that he
was acting as a lawyer when he lobbied in Congress for agrarian and urban reform, served in the
NAMFREL and the Constitutional Commission (together with non-lawyers like farmers and priests)
and was a member of the Davide Commission, he has not proved that his activities in these capacities
extended over the prescribed 10-year period of actual practice of the law. He is doubtless eminently
qualified for many other positions worthy of his abundant talents but not as Chairman of the
Commission on Elections.

I have much admiration for respondent Monsod, no less than for Mr. Justice Paras, but I must
regretfully vote to grant the petition.

GUTIERREZ, JR., J., dissenting:

When this petition was filed, there was hope that engaging in the practice of law as a qualification for
public office would be settled one way or another in fairly definitive terms. Unfortunately, this was not
the result.

Of the fourteen (14) member Court, 5 are of the view that Mr. Christian Monsod engaged in the practice
of law (with one of these 5 leaving his vote behind while on official leave but not expressing his clear
stand on the matter); 4 categorically stating that he did not practice law; 2 voting in the result because
there was no error so gross as to amount to grave abuse of discretion; one of official leave with no
instructions left behind on how he viewed the issue; and 2 not taking part in the deliberations and the
decision.

There are two key factors that make our task difficult. First is our reviewing the work of a constitutional
Commission on Appointments whose duty is precisely to look into the qualifications of persons
appointed to high office. Even if the Commission errs, we have no power to set aside error. We can
look only into grave abuse of discretion or whimsically and arbitrariness. Second is our belief that Mr.
Monsod possesses superior qualifications in terms of executive ability, proficiency in management,
educational background, experience in international banking and finance, and instant recognition by
the public. His integrity and competence are not questioned by the petitioner. What is before us is
compliance with a specific requirement written into the Constitution.

Inspite of my high regard for Mr. Monsod, I cannot shirk my constitutional duty. He has never engaged
in the practice of law for even one year. He is a member of the bar but to say that he has practiced
law is stretching the term beyond rational limits.
A person may have passed the bar examinations. But if he has not dedicated his life to the law, if he
has not engaged in an activity where membership in the bar is a requirement I fail to see how he can
claim to have been engaged in the practice of law.

Engaging in the practice of law is a qualification not only for COMELEC chairman but also for
appointment to the Supreme Court and all lower courts. What kind of Judges or Justices will we have
if there main occupation is selling real estate, managing a business corporation, serving in fact-finding
committee, working in media, or operating a farm with no active involvement in the law, whether in
Government or private practice, except that in one joyful moment in the distant past, they happened
to pass the bar examinations?

The Constitution uses the phrase "engaged in the practice of law for at least ten years." The deliberate
choice of words shows that the practice envisioned is active and regular, not isolated, occasional,
accidental, intermittent, incidental, seasonal, or extemporaneous. To be "engaged" in an activity for
ten years requires committed participation in something which is the result of one's decisive choice. It
means that one is occupied and involved in the enterprise; one is obliged or pledged to carry it out
with intent and attention during the ten-year period.

I agree with the petitioner that based on the bio-data submitted by respondent Monsod to the
Commission on Appointments, the latter has not been engaged in the practice of law for at least ten
years. In fact, if appears that Mr. Monsod has never practiced law except for an alleged one year
period after passing the bar examinations when he worked in his father's law firm. Even then his law
practice must have been extremely limited because he was also working for M.A. and Ph. D. degrees
in Economics at the University of Pennsylvania during that period. How could he practice law in the
United States while not a member of the Bar there?

The professional life of the respondent follows:

1.15.1. Respondent Monsod's activities since his passing the Bar examinations in 1961 consist
of the following:

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

2. 1963-1970: World Bank Group — Economist, Industry Department; Operations, Latin

American Department; Division Chief, South Asia and Middle East, International Finance
Corporation

3. 1970-1973: Meralco Group — Executive of various companies, i.e., Meralco Securities

Corporation, Philippine Petroleum Corporation, Philippine Electric Corporation

4. 1973-1976: Yujuico Group — President, Fil-Capital Development Corporation and affiliated

companies

5. 1976-1978: Finaciera Manila — Chief Executive Officer

6. 1978-1986: Guevent Group of Companies — Chief Executive Officer

7. 1986-1987: Philippine Constitutional Commission — Member

8. 1989-1991: The Fact-Finding Commission on the December 1989 Coup Attempt — Member
 9. Presently: Chairman of the Board and Chief Executive Officer of the following companies:

a. ACE Container Philippines, Inc.

b. Dataprep, Philippines

c. Philippine SUNsystems Products, Inc.

d. Semirara Coal Corporation

e. CBL Timber Corporation

Member of the Board of the Following:

a. Engineering Construction Corporation of the Philippines

b. First Philippine Energy Corporation

c. First Philippine Holdings Corporation

d. First Philippine Industrial Corporation

e. Graphic Atelier

f. Manila Electric Company

g. Philippine Commercial Capital, Inc.

h. Philippine Electric Corporation

i. Tarlac Reforestation and Environment Enterprises

j. Tolong Aquaculture Corporation

k. Visayan Aquaculture Corporation

l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22)

There is nothing in the above bio-data which even remotely indicates that respondent Monsod has
given the lawenough attention or a certain degree of commitment and participation as would support
in all sincerity and candor the claim of having engaged in its practice for at least ten years. Instead of
working as a lawyer, he has lawyers working for him. Instead of giving receiving that legal advice of
legal services, he was the oneadvice and those services as an executive but not as a lawyer.

The deliberations before the Commission on Appointments show an effort to equate "engaged in the
practice of law" with the use of legal knowledge in various fields of endeavor such as commerce,
industry, civic work, blue ribbon investigations, agrarian reform, etc. where such knowledge would be
helpful.
I regret that I cannot join in playing fast and loose with a term, which even an ordinary layman accepts
as having a familiar and customary well-defined meaning. Every resident of this country who has
reached the age of discernment has to know, follow, or apply the law at various times in his life. Legal
knowledge is useful if not necessary for the business executive, legislator, mayor, barangay captain,
teacher, policeman, farmer, fisherman, market vendor, and student to name only a few. And yet, can
these people honestly assert that as such, they are engaged in the practice of law?

The Constitution requires having been "engaged in the practice of law for at least ten years." It is not
satisfied with having been "a member of the Philippine bar for at least ten years."

Some American courts have defined the practice of law, as follows:

The practice of law involves not only appearance in court in connection with litigation but also
services rendered out of court, and it includes the giving of advice or the rendering of any
services requiring the use of legal skill or knowledge, such as preparing a will, contract or other
instrument, the legal effect of which, under the facts and conditions involved, must be carefully
determined. People ex rel. Chicago Bar Ass'n v. Tinkoff, 399 Ill. 282, 77 N.E.2d 693; People
ex rel. Illinois State Bar Ass'n v. People's Stock Yards State Bank, 344 Ill. 462,176 N.E. 901,
and cases cited.

It would be difficult, if not impossible to lay down a formula or definition of what constitutes the
practice of law. "Practicing law" has been defined as "Practicing as an attorney or counselor
at law according to the laws and customs of our courts, is the giving of advice or rendition of
any sort of service by any person, firm or corporation when the giving of such advice or
rendition of such service requires the use of any degree of legal knowledge or skill." Without
adopting that definition, we referred to it as being substantially correct in People ex rel. Illinois
State Bar Ass'n v. People's Stock Yards State Bank, 344 Ill. 462,176 N.E. 901. (People v.
Schafer, 87 N.E. 2d 773, 776)

For one's actions to come within the purview of practice of law they should not only be activities
peculiar to the work of a lawyer, they should also be performed, habitually, frequently or customarily,
to wit:

xxx xxx xxx

Respondent's answers to questions propounded to him were rather evasive. He was asked
whether or not he ever prepared contracts for the parties in real-estate transactions where he
was not the procuring agent. He answered: "Very seldom." In answer to the question as to
how many times he had prepared contracts for the parties during the twenty-one years of his
business, he said: "I have no Idea." When asked if it would be more than half a dozen times
his answer was I suppose. Asked if he did not recall making the statement to several parties
that he had prepared contracts in a large number of instances, he answered: "I don't recall
exactly what was said." When asked if he did not remember saying that he had made a practice
of preparing deeds, mortgages and contracts and charging a fee to the parties therefor in
instances where he was not the broker in the deal, he answered: "Well, I don't believe so, that
is not a practice." Pressed further for an answer as to his practice in preparing contracts and
deeds for parties where he was not the broker, he finally answered: "I have done about
everything that is on the books as far as real estate is concerned."

xxx xxx xxx

 Respondent takes the position that because he is a real-estate broker he has a lawful right to
do any legal work in connection with real-estate transactions, especially in drawing of real-
estate contracts, deeds, mortgages, notes and the like. There is no doubt but that he has
engaged in these practices over the years and has charged for his services in that connection.
... (People v. Schafer, 87 N.E. 2d 773)

xxx xxx xxx

... An attorney, in the most general sense, is a person designated or employed by another to
act in his stead; an agent; more especially, one of a class of persons authorized to appear and
act for suitors or defendants in legal proceedings. Strictly, these professional persons are
attorneys at law, and non-professional agents are properly styled "attorney's in fact;" but the
single word is much used as meaning an attorney at law. A person may be an attorney in facto
for another, without being an attorney at law. Abb. Law Dict. "Attorney." A public attorney, or
attorney at law, says Webster, is an officer of a court of law, legally qualified to prosecute and
defend actions in such court on the retainer of clients. "The principal duties of an attorney are
(1) to be true to the court and to his client; (2) to manage the business of his client with care,
skill, and integrity; (3) to keep his client informed as to the state of his business; (4) to keep
his secrets confided to him as such. ... His rights are to be justly compensated for his services."
Bouv. Law Dict. tit. "Attorney." The transitive verb "practice," as defined by Webster, means
'to do or perform frequently, customarily, or habitually; to perform by a succession of acts, as,
to practice gaming, ... to carry on in practice, or repeated action; to apply, as a theory, to real
life; to exercise, as a profession, trade, art. etc.; as, to practice law or medicine,' etc...." (State
v. Bryan, S.E. 522, 523; Emphasis supplied)

In this jurisdiction, we have ruled that the practice of law denotes frequency or a succession of acts.
Thus, we stated in the case of People v. Villanueva (14 SCRA 109 [1965]):

xxx xxx xxx

... Practice is more than an isolated appearance, for it consists in frequent or customary actions, a
succession of acts of the same kind. In other words, it is frequent habitual exercise (State v. Cotner,
127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall within the prohibition of statute has
been interpreted as customarily or habitually holding one's self out to the public, as a lawyer and
demanding payment for such services. ... . (at p. 112)

It is to be noted that the Commission on Appointment itself recognizes habituality as a required

component of the meaning of practice of law in a Memorandum prepared and issued by it, to wit:

l. Habituality. The term 'practice of law' implies customarilyor habitually holding one's self out
to the public as a lawyer (People v. Villanueva, 14 SCRA 109 citing State v. Bryan, 4 S.E. 522,
98 N.C. 644) such as when one sends a circular announcing the establishment of a law office
for the general practice of law (U.S. v. Noy Bosque, 8 Phil. 146), or when one takes the oath
of office as a lawyer before a notary public, and files a manifestation with the Supreme Court
informing it of his intention to practice law in all courts in the country (People v. De Luna, 102
Phil. 968).

Practice is more than an isolated appearance, for it consists in frequent or customary action,
a succession of acts of the same kind. In other words, it is a habitual exercise (People v.
Villanueva, 14 SCRA 1 09 citing State v. Cotner, 1 27, p. 1, 87 Kan, 864)." (Rollo, p. 115)

xxx xxx xxx

While the career as a businessman of respondent Monsod may have profited from his legal
knowledge, the use of such legal knowledge is incidental and consists of isolated activities which do
not fall under the denomination of practice of law. Admission to the practice of law was not required
for membership in the Constitutional Commission or in the Fact-Finding Commission on the 1989
Coup Attempt. Any specific legal activities which may have been assigned to Mr. Monsod while a
member may be likened to isolated transactions of foreign corporations in the Philippines which do not
categorize the foreign corporations as doing business in the Philippines. As in the practice of
law, doing business also should be active and continuous. Isolated business transactions or
occasional, incidental and casual transactions are not within the context of doing business. This was
our ruling in the case of Antam Consolidated, Inc. v. Court of appeals, 143 SCRA 288 [1986]).

Respondent Monsod, corporate executive, civic leader, and member of the Constitutional Commission
may possess the background, competence, integrity, and dedication, to qualify for such high offices
as President, Vice-President, Senator, Congressman or Governor but the Constitution in prescribing
the specific qualification of having engaged in the practice of law for at least ten (10) years for the
position of COMELEC Chairman has ordered that he may not be confirmed for that office. The
Constitution charges the public respondents no less than this Court to obey its mandate.

I, therefore, believe that the Commission on Appointments committed grave abuse of discretion in
confirming the nomination of respondent Monsod as Chairman of the COMELEC.

I vote to GRANT the petition.

Bidin, J., dissent

A.C. No. 11828, November 22, 2017

SPOUSES VICENTE AND PRECYWINDA GIMENA, Complainants, v. ATTY. JOJO S.

VIJIGA, Respondent.

DECISION

TIJAM, J.:

The relationship between lawyers and clients is a professional relationship as well as a fiduciary and
confidential one. One consequence of such professional relationship is the obligation of a lawyer to
efficiently manage his cases and update his clients of the status of the same.

ANTECEDENTS

This administrative case stems from the complaint brought by the Spouses Vicente and Precywinda
Gimena (complainants), against Atty. Jojo S. Vijiga (respondent) for the latter's failure to file the
appellants' brief in their behalf, resulting in the dismissal of their appeal in the Court of Appeals (CA).

In their complaint, Spouses Gimena alleged that they hired the respondent to represent them in a civil
case for nullity of foreclosure proceedings and voidance of loan documents filed against Metropolitan
Bank and Trust Company, involving eight parcels of land (subject properties), docketed as Civil Case
No. C-21053, assigned to the Regional Trial Court (RTC) of Caloocan City, Branch 126.

After trial on the merits, the RTC dismissed the action in its Decision dated June 6, 2011.

Aggrieved by the adverse decision, the complainants then brought the case to the appellate court,
docketed as CA G.R. CV No. 98271.1

On June 7, 2012, the CA issued a notice requiring complainants, (appellants therein), to file the
appellants' brief in accordance with Sec. 7, Rule 44 of the Rules of Court.

Respondent failed to file the brief. As a result, the CA issued a Resolution2 dated September 21, 2012.

On October 11, 2012, respondent filed an Omnibus Motion seeking the reconsideration of the
September 21, 2012 Resolution, citing illness and the damage to his law office due to monsoon rains,
as reasons for his failure to file the appellants' brief.3

The CA granted the motion in its Resolution dated January 3, 2013, and reinstated complainants'
appeal. Complainants were then given a period of fifteen (15) days within which to file the required
brief.

Respondent failed to file the appellants' brief within the given period. Hence, the CA issued a
Resolution4on March 15, 2013 dismissing the appeal. Complainants alleged that the March 15, 2013
Resolution became final and executory and was entered in the Book of Entries of Judgment of the CA
on April 27, 2013.

Complainants alleged that throughout the proceedings in the CA, respondent did not apprise them of
the status of their case. They were thus surprised when a bulldozer suddenly entered their properties.
Complainants thereafter inquired on the status of their case, and it was then that they discovered that
their appeal was dismissed.5

Complainants alleged that respondent violated Canon 17 and 18 of the Code of Professional
Responsibility and his oath as a lawyer. They claimed that respondent's lapse is not excusable and is
tantamount to gross ignorance, neligence and dereliction of duty.

For his part, respondent denied that he abandoned and neglegted complainants' appeal. He averred
that he was able to talk to complainant Vicente, via telephone, after the CA dismissed the appeal in its
Resolution dated September 21, 2012. Complainant Vicente purportedly told respondent not to pursue
the appeal considering that the subject properties are already in the possession of the bank. 6

FINDINGS OF THE INTEGRATED BAR OF THE PHILIPPINES (IBP)

The dispute was set for mandatory conference on August 20, 2014. Only complainants and their
counsel appeared during the conference, despite the notice being received by
respondent.7 Respondent filed an Ex-Parte and Urgent Motion to Reset the Scheduled Hearing8 to
October 1, 2014. Respondent again failed to appear, and instead, filed another motion9 to reset the
hearing to November 5, 2014. Respondent reasoned that he was set to attend hearings on the
scheduled date and time.

Investigating Commissioner Arsenio Adriano recommended that respondent be suspended from the
practice of law for six (6) months.

The IBP Board of Governors issued a Resolution10 on June 6, 2015, adopting and approving the Report
and Recommendation of the Investigating Commissioner.
RESOLUTION NO. XXI-2015-408
CBD Case No. 14-4217
Sps. Vicente and Precywinda Gimena vs. Atty. Jojo S. Vijiga

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and
Recommendation of the Investigating Commissioner in the above-entitled case, herein made part of
this Resolution as Annex "A", finding the recommendation to be fully supported by the evidence on
record and applicable laws. Thus, Respondent Atty. Jojo S. Vijiga is hereby found guilty of violation of
Canon 18, Rule 18.03 of the Code of Professional Responsibility and SUSPENDED from the practice
of law for six (6) months.
Respondent filed a motion for reconsideration11 on January 4, 2016. In a Resolution12 dated January
27, 2017, the Board of Governors denied respondent's motion for reconsideration.
RESOLUTION NO. XXII-2017-788
CBD Case No. 14-4217
Sps. Vicente and Precywinda Gimena vs. Atty. Jojo S. Vijiga

RESOLVED to DENY the Motion for Reconsideration there being no new reason and/or new argument
adduced to reverse the previous findings and decision of the Board of Governors.
ISSUE OF THE CASE

Did the respondent violate his ethical duties as a member of the Bar in his dealings with the
complainants?

RULING OF THE COURT

We adopt the findings and recommendation of the IBP. The Court finds that the suspension of
respondent from the practice of law is proper.

The Code of Professional Responsibility (CPR) is clear. A lawyer owes his client competent and zealous
legal representation.
CANON 17 - A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT AND HE SHALL BE MINDFUL
OF THE TRUST AND CONFIDENCE REPOSED IN HIM.

CANON 18 - A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE.
xxxx

Rule 18.03 - A lawyer shall not neglect a legal matter entrusted to him, and his negligence in
connection therewith shall render him liable.

Rule 18.04 - A lawyer shall keep the client informed of the status of his case and shall respond within
a reasonable time to the client's request for information.
Respondent's failure to submit the appellants' brief and update his clients, complainants herein, of the
status of their appeal falls short of the ethical requirements set forth under the CPR.

A lawyer is not required to represent anyone who consults him on legal matters.13 Neither is an
acceptance of a client or case, a guarantee of victory. However, being a service-oriented occupation,
lawyers are expected to observe diligence and exhibit professional behavior in all their dealings with
their clients. Lawyers should be mindful of the trust and confidence, not to mention the time and
money, reposed in them by their clients.

When a lawyer agrees to act as a counsel, he guarantees that he will exercise that reasonable degree
of care and skill demanded by the character of the business he undertakes to do, to protect the
clients' interests and take all steps or do all acts necessary therefor.14

The necessity and repercussions of non-submission of an appellant's brief are provided for in the Rules
of Court, to wit:
RULE 44
ORDINARY APPEALED CASES

xxxx

Sec. 7. Appellants brief.

It shall be the duty of the appellant to file with the court, within forty-five (45) days from
receipt of the notice of the clerk that all the evidence, oral and documentary, are attached to the
record, seven (7) copies of his legibly typewritten, mimeographed or printed brief, with proof of
service of two (2) copies thereof upon the appellee.

RULE 50
DISMISSAL OF APPEAL

Section 1. Grounds for dismissal of appeal.

An appeal may be dismissed by the Court of Appeals, on its own motion or on that of the appellee,
on the following grounds:
xxxx

(e) Failure of the appellant to serve and file the required number of copies of his brief or
memorandum within the time provided by these Rules; x x x (Emphasis supplied)
As a lawyer, respondent is presumed to be knowledgeable of the procedural rules in appellate
practice. He is presumed to know that dismissal is an inevitable result from failure to file the requisite
brief within the period stated in the Rules of Court. In this case, the fact that the appeal was twice
dismissed further highlights respondent's indifference to his client's cause. Interestingly, respondent
failed to offer any explanation as to why he failed to submit the appellants' brief within the 45-day
period from his receipt of the notice to file the same, resulting to the dismissal of the appeal for the
first time. To the mind of this Court, such failure is an unequivocal indication of his guilt in the
administrative charge. Indeed, failure to file the required pleadings is per se a violation of Rule 18.03
of the Code of Professional Responsibility, as cited above.15

His failure to file the appellants' brief, despite the CA's grant of leniency in reconsidering its initial
dismissal of the appeal further compounds respondent's inadequacies. In this case, respondent's
neglect of his professional duties led to the loss of complainants' properties and has left them bereft of
legal remedies. They lost their case not because of merits but because of technicalities, specifically the
respondent's failure to file the required pleadings. Certainly, the situation in the case at bar, is one
such evil that the CPR intended to avoid.

Worse, respondent's failure to inform complainants of the unfortunate fate of their appeal further
amplifies his lack of competence and diligence. As an officer of the court, it was respondent's duty to
inform his client of whatever important information he may have acquired affecting his client's case.
The purpose of informing the client is to minimize misunderstanding and loss of trust and confidence
in the attorney. The lawyer should not leave the client in the dark on how the lawyer is defending the
client's interests.16

This Court fails to find merit to respondent's claim that complainant Vicente directed him not to pursue
the appeal. If that was true, candor and respect of the courts would have impelled respondent to file a
motion to withdraw their appeal. Further, if indeed it was true that complainants lost interest in
pursuing the appeal, they would not have secured the services of another counsel and file before the
CA a motion to set aside the entry of judgment.

Apropos is this Court's ruling in Reynaldo G. Ramirez v. Atty. Mercedes Buhayang-Margallo17:

A problem arises whenever agents, entrusted to manage the interests of another, use their authority
or power for their benefit or fail to discharge their duties. In many agencies, there is information
assymetry between the principal and the entrusted agent. That is, there are facts and events that the
agent must attend to that may not be known by the principal.

This information assymetry is even more pronounced in an attorney-client relationship. Lawyers are
expected not only to be familiar with the minute facts of their cases but also to see their
relevance in relation to their causes of action or their defenses. The salience of these facts is
not usually patent to the client. It can only be seen through familiarity with the relevant legal
provisions that are invoked with their jurisprudential interpretations. More so with the intricacies of the
legal procedure. It is the lawyer that receives the notices and must decide the mode of appeal to
protect the interest of his or her client.

Thus, the relationship between a lawyer and her client is regarded as highly fiduciary. Between the
lawyer and the client, it is the lawyer that has the better knowledge of facts, events, and
remedies. While it is true that the client chooses which lawyer to engage, he or she usually does so
on the basis of reputation. It is only upon actual engagement that the client discovers the level of
diligence, competence, and accountability of the counsel that he or she chooses. In some cases, such
as this one, the discovery comes too late. Between the lawyer and the client, therefore, it is the
lawyer that should bear the full costs of indifference or negligence.18 (Emphasis supplied)
True, for respondent's failure to protect the interest of complainants, respondent indeed violated
Canon 17 and Canon 18 of the Code of Professional Responsibility. Respondent is reminded that the
practice of law is a special privilege bestowed only upon those who are competent intellectually,
academically and morally.

The penalty to be meted to an erring lawyer rests on sound judicial discretion. In cases of similar
nature, this Court imposed penalties ranging from a reprimand to suspension of three months or six
months, and even disbarment in aggravated cases.19 In Rene B. Hermano v. Atty. Igmedio S. Prado,
Jr.20, this Court suspended Atty. Prado from the practice of law for six months for his failure to file an
appellant's brief that could have resulted to the dismissal of the case had it not been for the
intervention of another lawyer. In Felicisima .Mendoza Vda. De Robosa v. Mendoza and Navarro, Jr.21,
respondent therein was suspended for six months for a similar infraction. Also, in Cesar Talento, et al.
v. Atty. Agustin F. Paneda22, one year of suspension from the practice of law was imposed to therein
respondent for his failure to file the appeal brief for his client and for failure to return the money paid
for legal services that were not performed. On the other hand, in Fidela Vda. De Enriques v. Atty.
Manuel G. San Jose23, therein respondent's negligence in handling his client's cause merited a
suspension of six months from the practice of law.

In this case, the fact that the complaining parties now stand to lose eight parcels of land which they
claim to own due to respondent's failure to perform his professional and ethical duties, We deemed
justified the suspension of respondent from the practice of law for six months.

In affirming the recommendation of the IBP, this Court is mindful of its earlier ruling in Ofelia R.
Somosot v. Atty. Gerardo F. Lara24:
The general public must know that the legal profession is a closely regulated profession where
transgressions merit swift but commensurate penalties; it is a profession that they can trust because
we guard our ranks and our standards well. The Bar must sit up and take notice of what happened in
this case to be able to guard against any repetition of the respondent's transgressions, particularly his
failure to report the developments of an ongoing case to his clients. Unless the Bar takes a pro�active
stance, we cannot really blame members of the public who are not very well disposed towards, and
who may even distrust, the legal profession after hearing experiences similar to what the complainant
suffered. The administration of justice is served well when we demonstrate that effective remedies
exist to address the injustice and inequities that may result from transgressions by those acting in the
dispensation of justice process.25
WHEREFORE, in view of the foregoing, respondent Atty. Jojo S. Vijiga is SUSPENDED FOR SIX (6)
MONTHS from the practice of law with a warning that a repetition of the same or similar acts shall be
dealt with more severely. He is ADMONISHED to exercise greater care and diligence in the
performance of his duties.

This Decision shall take effect immediately upon receipt of Atty. Jojo S. Vijiga of a copy of this
Decision. He shall inform this Court and the Office of the Bar Confidant in writing of the date he
received a copy of this Decision. Copies of this Decision shall be furnished the Office of the Bar
Confidant, to be appended to respondent's personal record, and the Integrated Bar of the Philippines.
The Office of the Court Administrator is directed to circulate copies of this Decision to all courts
concerned.

SO ORDERED.

Sereno, C.J., (Chairperson), Leonardo-De Castro, Del Castillo, and Jardeleza, JJ., concur.
G.R. No. L-25291 January 30, 1971

THE INSULAR LIFE ASSURANCE CO., LTD., EMPLOYEES ASSOCIATION-NATU, FGU

INSURANCE GROUP WORKERS and EMPLOYEES ASSOCIATION-NATU, and INSULAR LIFE
BUILDING EMPLOYEES ASSOCIATION-NATU, petitioners,
vs.
THE INSULAR LIFE ASSURANCE CO., LTD., FGU INSURANCE GROUP, JOSE M. OLBES and
COURT OF INDUSTRIAL RELATIONS, respondents.

Lacsina, Lontok and Perez and Luis F. Aquino for petitioners.

Francisco de los Reyes for respondent Court of Industrial Relations.

Araneta, Mendoza and Papa for other respondents.

CASTRO, J.:

Appeal, by certiorari to review a decision and a resolution en banc of the Court of Industrial Relations
dated August 17, 1965 and October 20, 1965, respectively, in Case 1698-ULP.

The Insular Life Assurance Co., Ltd., Employees Association-NATU, FGU Insurance Group Workers
& Employees Association-NATU, and Insular Life Building Employees Association-NATU (hereinafter
referred to as the Unions), while still members of the Federation of Free Workers (FFW), entered into
separate collective bargaining agreements with the Insular Life Assurance Co., Ltd. and the FGU
Insurance Group (hereinafter referred to as the Companies).

Two of the lawyers of the Unions then were Felipe Enaje and Ramon Garcia; the latter was formerly
the secretary-treasurer of the FFW and acting president of the Insular Life/FGU unions and the Insular
Life Building Employees Association. Garcia, as such acting president, in a circular issued in his name
and signed by him, tried to dissuade the members of the Unions from disaffiliating with the FFW and
joining the National Association of Trade Unions (NATU), to no avail.

Enaje and Garcia soon left the FFW and secured employment with the Anti-Dummy Board of the
Department of Justice. Thereafter, the Companies hired Garcia in the latter part of 1956 as assistant
corporate secretary and legal assistant in their Legal Department, and he was soon receiving P900 a
month, or P600 more than he was receiving from the FFW. Enaje was hired on or about February 19,
1957 as personnel manager of the Companies, and was likewise made chairman of the negotiating
panel for the Companies in the collective bargaining with the Unions.

In a letter dated September 16, 1957, the Unions jointly submitted proposals to the Companies for a
modified renewal of their respective collective bargaining contracts which were then due to expire on
September 30, 1957. The parties mutually agreed and to make whatever benefits could be agreed
upon retroactively effective October 1, 1957.

Thereafter, in the months of September and October 1957 negotiations were conducted on the Union's
proposals, but these were snagged by a deadlock on the issue of union shop, as a result of which the
Unions filed on January 27, 1958 a notice of strike for "deadlock on collective bargaining." Several
conciliation conferences were held under the auspices of the Department of Labor wherein the
conciliators urged the Companies to make reply to the Unions' proposals en toto so that the said
Unions might consider the feasibility of dropping their demand for union security in exchange for other
benefits. However, the Companies did not make any counter-proposals but, instead, insisted that the
Unions first drop their demand for union security, promising money benefits if this was done.
Thereupon, and prior to April 15, 1958, the petitioner Insular Life Building Employees Association-
NATU dropped this particular demand, and requested the Companies to answer its demands, point
by point, en toto. But the respondent Insular Life Assurance Co. still refused to make any counter-
proposals. In a letter addressed to the two other Unions by the joint management of the Companies,
the former were also asked to drop their union security demand, otherwise the Companies "would no
longer consider themselves bound by the commitment to make money benefits retroactive to October
1, 1957." By a letter dated April 17, 1958, the remaining two petitioner unions likewise dropped their
demand for union shop. April 25, 1958 then was set by the parties to meet and discuss the remaining
demands.

From April 25 to May 6, 1958, the parties negotiated on the labor demands but with no satisfactory
result due to a stalemate on the matter of salary increases. On May 13, 1958 the Unions demanded
from the Companies final counter-proposals on their economic demands, particularly on salary
increases. Instead of giving counter-proposals, the Companies on May 15, 1958 presented facts and
figures and requested the Unions to submit a workable formula which would justify their own proposals,
taking into account the financial position of the former. Forthwith the Unions voted to declare a strike
in protest against what they considered the Companies' unfair labor practices.

Meanwhile, eighty-seven (87) unionists were reclassified as supervisors without increase in salary nor
in responsibility while negotiations were going on in the Department of Labor after the notice to strike
was served on the Companies. These employees resigned from the Unions.

On May 20, 1958 the Unions went on strike and picketed the offices of the Insular Life Building at
Plaza Moraga.

On May 21, 1958 the Companies through their acting manager and president, the respondent Jose
M. Olbes (hereinafter referred to as the respondent Olbes), sent to each of the strikers a letter (exhibit
A) quoted verbatim as follows:

We recognize it is your privilege both to strike and to conduct picketing.

However, if any of you would like to come back to work voluntarily, you may:

1. Advise the nearest police officer or security guard of your intention to do so.

2. Take your meals within the office.

3. Make a choice whether to go home at the end of the day or to sleep nights at the
office where comfortable cots have been prepared.

4. Enjoy free coffee and occasional movies.

5. Be paid overtime for work performed in excess of eight hours.

6. Be sure arrangements will be made for your families.

The decision to make is yours — whether you still believe in the motives of the strike
or in the fairness of the Management.
The Unions, however, continued on strike, with the exception of a few unionists who were convinced
to desist by the aforesaid letter of May 21, 1958.

From the date the strike was called on May 21, 1958, until it was called off on May 31, 1958, some
management men tried to break thru the Unions' picket lines. Thus, on May 21, 1958 Garcia, assistant
corporate secretary, and Vicente Abella, chief of the personnel records section, respectively of the
Companies, tried to penetrate the picket lines in front of the Insular Life Building. Garcia, upon
approaching the picket line, tossed aside the placard of a picketer, one Paulino Bugay; a fight ensued
between them, in which both suffered injuries. The Companies organized three bus-loads of
employees, including a photographer, who with the said respondent Olbes, succeeded in penetrating
the picket lines in front of the Insular Life Building, thus causing injuries to the picketers and also to
the strike-breakers due to the resistance offered by some picketers.

Alleging that some non-strikers were injured and with the use of photographs as evidence, the
Companies then filed criminal charges against the strikers with the City Fiscal's Office of Manila.
During the pendency of the said cases in the fiscal's office, the Companies likewise filed a petition for
injunction with damages with the Court of First Instance of Manila which, on the basis of the pendency
of the various criminal cases against striking members of the Unions, issued on May 31, 1958 an order
restraining the strikers, until further orders of the said court, from stopping, impeding, obstructing, etc.
the free and peaceful use of the Companies' gates, entrance and driveway and the free movement of
persons and vehicles to and from, out and in, of the Companies' building.

On the same date, the Companies, again through the respondent Olbes, sent individually to the
strikers a letter (exhibit B), quoted hereunder in its entirety:

The first day of the strike was last 21 May 1958.

Our position remains unchanged and the strike has made us even more convinced of
our decision.

We do not know how long you intend to stay out, but we cannot hold your positions
open for long. We have continued to operate and will continue to do so with or without
you.

If you are still interested in continuing in the employ of the Group Companies, and if
there are no criminal charges pending against you, we are giving you until 2 June 1958
to report for work at the home office. If by this date you have not yet reported, we may
be forced to obtain your replacement.

Before, the decisions was yours to make.

So it is now.

Incidentally, all of the more than 120 criminal charges filed against the members of the Unions, except
three (3), were dismissed by the fiscal's office and by the courts. These three cases involved "slight
physical injuries" against one striker and "light coercion" against two others.

At any rate, because of the issuance of the writ of preliminary injunction against them as well as the
ultimatum of the Companies giving them until June 2, 1958 to return to their jobs or else be replaced,
the striking employees decided to call off their strike and to report back to work on June 2, 1958.
However, before readmitting the strikers, the Companies required them not only to secure clearances
from the City Fiscal's Office of Manila but also to be screened by a management committee among
the members of which were Enage and Garcia. The screening committee initially rejected 83 strikers
with pending criminal charges. However, all non-strikers with pending criminal charges which arose
from the breakthrough incident were readmitted immediately by the Companies without being required
to secure clearances from the fiscal's office. Subsequently, when practically all the strikers had
secured clearances from the fiscal's office, the Companies readmitted only some but adamantly
refused readmission to 34 officials and members of the Unions who were most active in the strike, on
the ground that they committed "acts inimical to the interest of the respondents," without however
stating the specific acts allegedly committed. Among those who were refused readmission are
Emiliano Tabasondra, vice president of the Insular Life Building Employees' Association-NATU;
Florencio Ibarra, president of the FGU Insurance Group Workers & Employees Association-NATU;
and Isagani Du Timbol, acting president of the Insular Life Assurance Co., Ltd. Employees
Association-NATU. Some 24 of the above number were ultimately notified months later that they were
being dismissed retroactively as of June 2, 1958 and given separation pay checks computed under
Rep. Act 1787, while others (ten in number) up to now have not been readmitted although there have
been no formal dismissal notices given to them.

On July 29, 1958 the CIR prosecutor filed a complaint for unfair labor practice against the Companies
under Republic Act 875. The complaint specifically charged the Companies with (1) interfering with
the members of the Unions in the exercise of their right to concerted action, by sending out individual
letters to them urging them to abandon their strike and return to work, with a promise of comfortable
cots, free coffee and movies, and paid overtime, and, subsequently, by warning them that if they did
not return to work on or before June 2, 1958, they might be replaced; and (2) discriminating against
the members of the Unions as regards readmission to work after the strike on the basis of their union
membership and degree of participation in the strike.

On August 4, 1958 the Companies filed their answer denying all the material allegations of the
complaint, stating special defenses therein, and asking for the dismissal of the complaint.

After trial on the merits, the Court of Industrial Relations, through Presiding Judge Arsenio Martinez,
rendered on August 17, 1965 a decision dismissing the Unions' complaint for lack of merit. On August
31, 1965 the Unions seasonably filed their motion for reconsideration of the said decision, and their
supporting memorandum on September 10, 1965. This was denied by the Court of Industrial
Relations en banc in a resolution promulgated on October 20, 1965.

Hence, this petition for review, the Unions contending that the lower court erred:

1. In not finding the Companies guilty of unfair labor practice in sending out individually
to the strikers the letters marked Exhibits A and B;

2. In not finding the Companies guilty of unfair labor practice for discriminating against
the striking members of the Unions in the matter of readmission of employees after the
strike;

3. In not finding the Companies guilty of unfair labor practice for dismissing officials
and members of the Unions without giving them the benefit of investigation and the
opportunity to present their side in regard to activities undertaken by them in the
legitimate exercise of their right to strike; and
 4. In not ordering the reinstatement of officials and members of the Unions, with full
back wages, from June 2, 1958 to the date of their actual reinstatement to their usual
employment.

I. The respondents contend that the sending of the letters, exhibits A and B, constituted a legitimate
exercise of their freedom of speech. We do not agree. The said letters were directed to the striking
employees individually — by registered special delivery mail at that — without being coursed through
the Unions which were representing the employees in the collective bargaining.

The act of an employer in notifying absent employees individually during a strike

following unproductive efforts at collective bargaining that the plant would be operated
the next day and that their jobs were open for them should they want to come in has
been held to be an unfair labor practice, as an active interference with the right of
collective bargaining through dealing with the employees individually instead of
through their collective bargaining representatives. (31 Am. Jur. 563, citing NLRB v.
Montgomery Ward & Co. [CA 9th] 133 F2d 676, 146 ALR 1045)

Indeed, it is an unfair labor practice for an employer operating under a collective bargaining agreement
to negotiate or to attempt to negotiate with his employees individually in connection with changes in
the agreement. And the basis of the prohibition regarding individual bargaining with the strikers is that
although the union is on strike, the employer is still under obligation to bargain with the union as the
employees' bargaining representative (Melo Photo Supply Corporation vs. National Labor Relations
Board, 321 U.S. 332).

Indeed, some such similar actions are illegal as constituting unwarranted acts of interference. Thus,
the act of a company president in writing letters to the strikers, urging their return to work on terms
inconsistent with their union membership, was adjudged as constituting interference with the exercise
of his employees' right to collective bargaining (Lighter Publishing, CCA 7th, 133 F2d 621). It is likewise
an act of interference for the employer to send a letter to all employees notifying them to return to work
at a time specified therein, otherwise new employees would be engaged to perform their jobs.
Individual solicitation of the employees or visiting their homes, with the employer or his representative
urging the employees to cease union activity or cease striking, constitutes unfair labor practice. All the
above-detailed activities are unfair labor practices because they tend to undermine the concerted
activity of the employees, an activity to which they are entitled free from the employer's molestation.1

Moreover, since exhibit A is a letter containing promises of benefits to the employees in order to entice
them to return to work, it is not protected by the free speech provisions of the Constitution (NLRB v.
Clearfield Cheese Co., Inc., 213 F2d 70). The same is true with exhibit B since it contained threats to
obtain replacements for the striking employees in the event they did not report for work on June 2,
1958. The free speech protection under the Constitution is inapplicable where the expression of
opinion by the employer or his agent contains a promise of benefit, or threats, or reprisal (31 Am. Jur.
544; NLRB vs. Clearfield Cheese Co., Inc., 213 F2d 70; NLRB vs. Goigy Co., 211 F2d 533, 35 ALR
2d 422).

Indeed, when the respondents offered reinstatement and attempted to "bribe" the strikers with
"comfortable cots," "free coffee and occasional movies," "overtime" pay for "work performed in excess
of eight hours," and "arrangements" for their families, so they would abandon the strike and return to
work, they were guilty of strike-breaking and/or union-busting and, consequently, of unfair labor
practice. It is equivalent to an attempt to break a strike for an employer to offer reinstatement to striking
employees individually, when they are represented by a union, since the employees thus offered
reinstatement are unable to determine what the consequences of returning to work would be.
Likewise violative of the right to organize, form and join labor organizations are the following acts: the
offer of a Christmas bonus to all "loyal" employees of a company shortly after the making of a request
by the union to bargain; wage increases given for the purpose of mollifying employees after the
employer has refused to bargain with the union, or for the purpose of inducing striking employees to
return to work; the employer's promises of benefits in return for the strikers' abandonment of their
strike in support of their union; and the employer's statement, made about 6 weeks after the strike
started, to a group of strikers in a restaurant to the effect that if the strikers returned to work, they
would receive new benefits in the form of hospitalization, accident insurance, profit-sharing, and a new
building to work in.2

Citing paragraph 5 of the complaint filed by the acting prosecutor of the lower court which states that
"the officers and members of the complainant unions decided to call off the strike and return to work
on June 2, 1958 by reason of the injunction issued by the Manila Court of First Instance," the
respondents contend that this was the main cause why the strikers returned to work and not the letters,
exhibits A and B. This assertion is without merit. The circumstance that the strikers later decided to
return to work ostensibly on account of the injunctive writ issued by the Court of First Instance of
Manila cannot alter the intrinsic quality of the letters, which were calculated, or which tended, to
interfere with the employees' right to engage in lawful concerted activity in the form of a strike.
Interference constituting unfair labor practice will not cease to be such simply because it was
susceptible of being thwarted or resisted, or that it did not proximately cause the result intended. For
success of purpose is not, and should not, be the criterion in determining whether or not a prohibited
act constitutes unfair labor practice.

The test of whether an employer has interfered with and coerced employees within the
meaning of subsection (a) (1) is whether the employer has engaged in conduct which
it may reasonably be said tends to interfere with the free exercise of employees' rights
under section 3 of the Act, and it is not necessary that there be direct evidence that
any employee was in fact intimidated or coerced by statements of threats of the
employer if there is a reasonable inference that anti-union conduct of the employer
does have an adverse effect on self-organization and collective bargaining. (Francisco,
Labor Laws 1956, Vol. II, p. 323, citing NLRB v. Ford, C.A., 1948, 170 F2d 735).

Besides, the letters, exhibits A and B, should not be considered by themselves alone but should be
read in the light of the preceding and subsequent circumstances surrounding them. The letters should
be interpreted according to the "totality of conduct doctrine,"

... whereby the culpability of an employer's remarks were to be evaluated not only on
the basis of their implicit implications, but were to be appraised against the background
of and in conjunction with collateral circumstances. Under this "doctrine" expressions
of opinion by an employer which, though innocent in themselves, frequently were held
to be culpable because of the circumstances under which they were uttered, the history
of the particular employer's labor relations or anti-union bias or because of their
connection with an established collateral plan of coercion or interference. (Rothenberg
on Relations, p. 374, and cases cited therein.)

It must be recalled that previous to the petitioners' submission of proposals for an amended renewal
of their respective collective bargaining agreements to the respondents, the latter hired Felipe Enage
and Ramon Garcia, former legal counsels of the petitioners, as personnel manager and assistant
corporate secretary, respectively, with attractive compensations. After the notice to strike was served
on the Companies and negotiations were in progress in the Department of Labor, the respondents
reclassified 87 employees as supervisors without increase in salary or in responsibility, in effect
compelling these employees to resign from their unions. And during the negotiations in the Department
of Labor, despite the fact that the petitioners granted the respondents' demand that the former drop
their demand for union shop and in spite of urgings by the conciliators of the Department of Labor, the
respondents adamantly refused to answer the Unions' demands en toto. Incidentally, Enage was the
chairman of the negotiating panel for the Companies in the collective bargaining between the former
and the Unions. After the petitioners went to strike, the strikers were individually sent copies of exhibit
A, enticing them to abandon their strike by inducing them to return to work upon promise of special
privileges. Two days later, the respondents, thru their president and manager, respondent Jose M.
Olbes, brought three truckloads of non-strikers and others, escorted by armed men, who, despite the
presence of eight entrances to the three buildings occupied by the Companies, entered thru only one
gate less than two meters wide and in the process, crashed thru the picket line posted in front of the
premises of the Insular Life Building. This resulted in injuries on the part of the picketers and the strike-
breakers. Then the respondents brought against the picketers criminal charges, only three of which
lâwphî1.ñèt

were not dismissed, and these three only for slight misdemeanors. As a result of these criminal actions,
the respondents were able to obtain an injunction from the court of first instance restraining the strikers
from stopping, impeding, obstructing, etc. the free and peaceful use of the Companies' gates, entrance
and driveway and the free movement of persons and vehicles to and from, out and in, of the
Companies' buildings. On the same day that the injunction was issued, the letter, Exhibit B, was sent
— again individually and by registered special delivery mail — to the strikers, threatening them with
dismissal if they did not report for work on or before June 2, 1958. But when most of the petitioners
reported for work, the respondents thru a screening committee — of which Ramon Garcia was a
member — refused to admit 63 members of the Unions on the ground of "pending criminal charges."
However, when almost all were cleared of criminal charges by the fiscal's office, the respondents
adamantly refused admission to 34 officials and union members. It is not, however, disputed that all-
non-strikers with pending criminal charges which arose from the breakthrough incident of May 23,
1958 were readmitted immediately by the respondents. Among the non-strikers with pending criminal
charges who were readmitted were Generoso Abella, Enrique Guidote, Emilio Carreon, Antonio
Castillo, Federico Barretto, Manuel Chuidian and Nestor Cipriano. And despite the fact that the fiscal's
office found no probable cause against the petitioning strikers, the Companies adamantly refused
admission to them on the pretext that they committed "acts inimical to the interest of the respondents,"
without stating specifically the inimical acts allegedly committed. They were soon to admit, however,
that these alleged inimical acts were the same criminal charges which were dismissed by the fiscal
and by the courts..

Verily, the above actuations of the respondents before and after the issuance of the letters, exhibit A
and B, yield the clear inference that the said letters formed of the respondents scheme to preclude if
not destroy unionism within them.

To justify the respondents' threat to dismiss the strikers and secure replacements for them in order to
protect and continue their business, the CIR held the petitioners' strike to be an economic strike on
the basis of exhibit 4 (Notice of Strike) which states that there was a "deadlock in collective bargaining"
and on the strength of the supposed testimonies of some union men who did not actually know the
very reason for the strike. It should be noted that exhibit 4, which was filed on January 27, 1958,
states, inter alia:

TO: BUREAU OF LABOR RELATIONS

DEPARTMENT OF LABOR
MANILA

Thirty (30) days from receipt of this notice by the Office, this [sic] unions intends to go
on strike against
 THE INSULAR LIFE ASSURANCE CO., LTD.
Plaza Moraga, Manila

THE FGU INSURANCE GROUP

Plaza Moraga, Manila

INSULAR LIFE BUILDING ADMINISTRATION

Plaza Moraga, Manila .

for the following reason: DEADLOCK IN COLLECTIVE BARGAINING...

However, the employees did not stage the strike after the thirty-day period, reckoned from January
27, 1958. This simply proves that the reason for the strike was not the deadlock on collective
bargaining nor any lack of economic concessions. By letter dated April 15, 1958, the respondents
categorically stated what they thought was the cause of the "Notice of Strike," which so far as material,
reads:

3. Because you did not see fit to agree with our position on the union shop, you filed a
notice of strike with the Bureau of Labor Relations on 27 January 1958, citing
`deadlock in collective bargaining' which could have been for no other issue than the
union shop." (exhibit 8, letter dated April 15, 1958.)

The strike took place nearly four months from the date the said notice of strike was filed. And the actual
and main reason for the strike was, "When it became crystal clear the management double crossed
or will not negotiate in good faith, it is tantamount to refusal collectively and considering the unfair
labor practice in the meantime being committed by the management such as the sudden resignation
of some unionists and [who] became supervisors without increase in salary or change in responsibility,
such as the coercion of employees, decided to declare the strike." (tsn., Oct. 14, 1958, p. 14.) The
truth of this assertion is amply proved by the following circumstances: (1) it took the respondents six
(6) months to consider the petitioners' proposals, their only excuse being that they could not go on
with the negotiations if the petitioners did not drop the demand for union shop (exh. 7, respondents'
letter dated April 7, 1958); (2) when the petitioners dropped the demand for union shop, the
respondents did not have a counter-offer to the petitioners' demands. Sec. 14 of Rep. Act 875 required
the respondents to make a reply to the petitioners' demands within ten days from receipt thereof, but
instead they asked the petitioners to give a "well reasoned, workable formula which takes into account
the financial position of the group companies." (tsn., Sept. 8, 1958, p. 62; tsn., Feb. 26, 1969, p. 49.)

II. Exhibit H imposed three conditions for readmission of the strikers, namely: (1) the employee must
be interested in continuing his work with the group companies; (2) there must be no criminal charges
against him; and (3) he must report for work on June 2, 1958, otherwise he would be replaced. Since
the evidence shows that all the employees reported back to work at the respondents' head office on
June 2, 1953, they must be considered as having complied with the first and third conditions.

Our point of inquiry should therefore be directed at whether they also complied with the second
condition. It is not denied that when the strikers reported for work on June 2, 1958, 63 members of the
Unions were refused readmission because they had pending criminal charges. However, despite the
fact that they were able to secure their respective clearances 34 officials and union members were
still refused readmission on the alleged ground that they committed acts inimical to the Companies. It
is beyond dispute, however, that non-strikers who also had criminal charges pending against them in
the fiscal's office, arising from the same incidents whence the criminal charges against the strikers
evolved, were readily readmitted and were not required to secure clearances. This is a clear act of
discrimination practiced by the Companies in the process of rehiring and is therefore a violation of sec.
4(a) (4) of the Industrial Peace Act.

The respondents did not merely discriminate against all the strikers in general. They separated the
active from the less active unionists on the basis of their militancy, or lack of it, on the picket lines.
Unionists belonging to the first category were refused readmission even after they were able to secure
clearances from the competent authorities with respect to the criminal charges filed against them. It is
significant to note in this connection that except for one union official who deserted his union on the
second day of the strike and who later participated in crashing through the picket lines, not a single
union officer was taken back to work. Discrimination undoubtedly exists where the record shows that
the union activity of the rehired strikers has been less prominent than that of the strikers who were
denied reinstatement.

So is there an unfair labor practice where the employer, although authorized by the
Court of Industrial Relations to dismiss the employees who participated in an illegal
strike, dismissed only the leaders of the strikers, such dismissal being evidence of
discrimination against those dismissed and constituting a waiver of the employer's right
to dismiss the striking employees and a condonation of the fault committed by them."
(Carlos and Fernando, Labor and Social Legislation, p. 62, citing Phil. Air Lines, Inc.
v. Phil. Air Lines Emloyees Association, L-8197, Oct. 31, 1958.)

It is noteworthy that — perhaps in an anticipatory effort to exculpate themselves from charges of

discrimination in the readmission of strikers returning to work — the respondents delegated the power
to readmit to a committee. But the respondent Olbes had chosen Vicente Abella, chief of the personnel
records section, and Ramon Garcia, assistant corporate secretary, to screen the unionists reporting
back to work. It is not difficult to imagine that these two employees — having been involved in
unpleasant incidents with the picketers during the strike — were hostile to the strikers. Needless to
say, the mere act of placing in the hands of employees hostile to the strikers the power of
reinstatement, is a form of discrimination in rehiring.

Delayed reinstatement is a form of discrimination in rehiring, as is having the

machinery of reinstatement in the hands of employees hostile to the strikers, and
reinstating a union official who formerly worked in a unionized plant, to a job in another
mill, which was imperfectly organized. (Morabe, The Law on Strikes, p. 473, citing
Sunshine Mining Co., 7 NLRB 1252; Cleveland Worsted Mills, 43 NLRB 545; emphasis
supplied.)

Equally significant is the fact that while the management and the members of the screening committee
admitted the discrimination committed against the strikers, they tossed back and around to each other
the responsibility for the discrimination. Thus, Garcia admitted that in exercising for the management
the authority to screen the returning employees, the committee admitted the non-strikers but refused
readmission to the strikers (tsn., Feb. 6, 1962, pp. 15-19, 23-29). Vicente Abella, chairman of the
management's screening committee, while admitting the discrimination, placed the blame therefor
squarely on the management (tsn., Sept. 20, 1960, pp. 7-8, 14-18). But the management, speaking
through the respondent Olbes, head of the Companies, disclaimed responsibility for the discrimination.
He testified that "The decision whether to accept or not an employee was left in the hands of that
committee that had been empowered to look into all cases of the strikers." (tsn., Sept. 6, 1962, p. 19.)

Of course, the respondents — through Ramon Garcia — tried to explain the basis for such
discrimination by testifying that strikers whose participation in any alleged misconduct during the
picketing was not serious in nature were readmissible, while those whose participation was serious
were not. (tsn., Aug. 4, 1961, pp. 48-49, 56). But even this distinction between acts of slight misconduct
and acts of serious misconduct which the respondents contend was the basis for either reinstatement
or discharge, is completely shattered upon a cursory examination of the evidence on record. For with
the exception of Pascual Esquillo whose dismissal sent to the other strikers cited the alleged
commission by them of simple "acts of misconduct."

III. Anent the third assignment of error, the record shows that not a single dismissed striker was given
the opportunity to defend himself against the supposed charges against him. As earlier mentioned,
when the striking employees reported back for work on June 2, 1958, the respondents refused to
readmit them unless they first secured the necessary clearances; but when all, except three, were
able to secure and subsequently present the required clearances, the respondents still refused to take
them back. Instead, several of them later received letters from the respondents in the following
stereotyped tenor:

This will confirm the termination of your employment with the Insular Life-FGU
Insurance Group as of 2 June 1958.

The termination of your employment was due to the fact that you committed acts of
misconduct while picketing during the last strike. Because this may not constitute
sufficient cause under the law to terminate your employment without pay, we are giving
you the amount of P1,930.32 corresponding to one-half month pay for every year of
your service in the Group Company.

Kindly acknowledge receipt of the check we are sending herewith.

Very truly yours,

(Sgd.) JOSE M.
OLBES
President, Insurance
Life
Acting President, FGU.

The respondents, however, admitted that the alleged "acts of misconduct" attributed to the dismissed
strikers were the same acts with which the said strikers were charged before the fiscal's office and the
courts. But all these charges except three were dropped or dismissed.

Indeed, the individual cases of dismissed officers and members of the striking unions do not indicate
sufficient basis for dismissal.

Emiliano Tabasondra, vice-president of the petitioner FGU Insurance Group Workers & Employees
Association-NATU, was refused reinstatement allegedly because he did not report for duty on June 2,
1958 and, hence, had abandoned his office. But the overwhelming evidence adduced at the trial and
which the respondents failed to rebut, negates the respondents' charge that he had abandoned his
job. In his testimony, corroborated by many others, Tabasondra particularly identified the management
men to whom he and his group presented themselves on June 2, 1958. He mentioned the respondent
Olbes' secretary, De Asis, as the one who received them and later directed them — when Olbes
refused them an audience — to Felipe Enage, the Companies' personnel manager. He likewise
categorically stated that he and his group went to see Enage as directed by Olbes' secretary. If
Tabasondra were not telling the truth, it would have been an easy matter for the respondents to
produce De Asis and Enage — who testified anyway as witnesses for the respondents on several
occasions — to rebut his testimony. The respondents did nothing of the kind. Moreover, Tabasondra
called on June 21, 1958 the respondents' attention to his non-admission and asked them to inform
him of the reasons therefor, but instead of doing so, the respondents dismissed him by their letter
dated July 10, 1958. Elementary fairness required that before being dismissed for cause, Tabasondra
be given "his day in court."

At any rate, it has been held that mere failure to report for work after notice to return, does not
constitute abandonment nor bar reinstatement. In one case, the U.S. Supreme Court held that the
taking back of six of eleven men constituted discrimination although the five strikers who were not
reinstated, all of whom were prominent in the union and in the strike, reported for work at various times
during the next three days, but were told that there were no openings. Said the Court:

... The Board found, and we cannot say that its finding is unsupported, that, in taking
back six union men, the respondent's officials discriminated against the latter on
account of their union activities and that the excuse given that they did not apply until
after the quota was full was an afterthought and not the true reason for the
discrimination against them. (NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333,
58 Sup. Ct. 904, 82 L. Ed. 1381) (Mathews, Labor Relations and the Law, p. 725, 728)

The respondents' allegation that Tabasondra should have returned after being refused readmission
on June 2, 1958, is not persuasive. When the employer puts off reinstatement when an employee
reports for work at the time agreed, we consider the employee relieved from the duty of returning
further.

Sixto Tongos was dismissed allegedly because he revealed that despite the fact that the Companies
spent more than P80,000 for the vacation trips of officials, they refused to grant union demands; hence,
he betrayed his trust as an auditor of the Companies. We do not find this allegation convincing. First,
this accusation was emphatically denied by Tongos on the witness stand. Gonzales, president of one
of the respondent Companies and one of the officials referred to, took a trip abroad in 1958. Exchange
controls were then in force, and an outgoing traveller on a combined business and vacation trip was
allowed by the Central Bank, per its Circular 52 (Notification to Authorized Agent Banks) dated May 9,
1952, an allocation of $1,000 or only P2,000, at the official rate of two pesos to the dollar, as pocket
money; hence, this was the only amount that would appear on the books of the Companies. It was
only on January 21, 1962, per its Circular 133 (Notification to Authorized Agent Banks), that the Central
Bank lifted the exchange controls. Tongos could not therefore have revealed an amount bigger than
the above sum. And his competence in figures could not be doubted considering that he had passed
the board examinations for certified public accountants. But assuming arguendo that Tongos indeed
revealed the true expenses of Gonzales' trip — which the respondents never denied or tried to
disprove — his statements clearly fall within the sphere of a unionist's right to discuss and advertise
the facts involved in a labor dispute, in accordance with section 9(a)(5) of Republic Act 875 which
guarantees the untramelled exercise by striking employees of the right to give "publicity to the
existence of, or the fact involved in any labor dispute, whether by advertising, speaking, patrolling or
by any method not involving fraud or violence." Indeed, it is not only the right, it is as well the duty, of
every unionist to advertise the facts of a dispute for the purpose of informing all those affected thereby.
In labor disputes, the combatants are expected to expose the truth before the public to justify their
respective demands. Being a union man and one of the strikers, Tongos was expected to reveal the
whole truth on whether or not the respondent Companies were justified in refusing to accede to union
demands. After all, not being one of the supervisors, he was not a part of management. And his
statement, if indeed made, is but an expression of free speech protected by the Constitution.

Free speech on both sides and for every faction on any side of the labor relation is to
me a constitutional and useful right. Labor is free ... to turn its publicity on any labor
oppression, substandard wages, employer unfairness, or objectionable working
conditions. The employer, too, should be free to answer and to turn publicity on the
 records of the leaders of the unions which seek the confidence of his men ...
(Concurring opinion of Justice Jackson in Thomas v. Collins, 323 U.S. 516, 547, 65
Sup. Ct. 315, 89 L. Ed. 430.) (Mathews, Labor Relations and the Law, p. 591.)

The respondents also allege that in revealing certain confidential information, Tongos committed not
only a betrayal of trust but also a violation of the moral principles and ethics of accountancy. But
nowhere in the Code of Ethics for Certified Public Accountants under the Revised Rules and
Regulations of the Board of Accountancy formulated in 1954, is this stated. Moreover, the relationship
of the Companies with Tongos was that of an employer and not a client. And with regard to the
testimonies of Juan Raymundo and Antolin Carillo, both vice-presidents of the Trust Insurance
Agencies, Inc. about the alleged utterances made by Tongos, the lower court should not have given
them much weight. The firm of these witnesses was newly established at that time and was still a
"general agency" of the Companies. It is not therefore amiss to conclude that they were more inclined
to favor the respondents rather than Tongos.

Pacifico Ner, Paulino Bugay, Jose Garcia, Narciso Daño, Vicente Alsol and Hermenigildo Ramirez,
opined the lower court, were constructively dismissed by non-readmission allegedly because they not
only prevented Ramon Garcia, assistant corporate secretary, and Vicente Abella, chief of the
personnel records section of the Companies, from entering the Companies' premises on May 21,
1958, but they also caused bruises and abrasions on Garcia's chest and forehead — acts considered
inimical to the interest of the respondents. The Unions, upon the other hand, insist that there is
complete lack of evidence that Ner took part in pushing Garcia; that it was Garcia who elbowed his
way through the picket lines and therefore Ner shouted "Close up," which the picketers did; and that
Garcia tossed Paulino Bugay's placard and a fight ensued between them in which both suffered
injuries. But despite these conflicting versions of what actually happened on May 21, 1958, there are
grounds to believe that the picketers are not responsible for what happened. The picketing on May
lâwphî1.ñèt

21, 1958, as reported in the police blotter, was peaceful (see Police blotter report, exh. 3 in CA-G.R.
No. 25991-R of the Court of Appeals, where Ner was acquitted). Moreover, although the Companies
during the strike were holding offices at the Botica Boie building at Escolta, Manila; Tuason Building
at San Vicente Street, Manila; and Ayala, Inc. offices at Makati, Rizal, Garcia, the assistant corporate
secretary, and Abella, the chief of the personnel records section, reported for work at the Insular Life
Building. There is therefore a reasonable suggestion that they were sent to work at the latter building
to create such an incident and have a basis for filing criminal charges against the petitioners in the
fiscal's office and applying for injunction from the court of first instance. Besides, under the
circumstances the picketers were not legally bound to yield their grounds and withdraw from the picket
lines. Being where the law expects them to be in the legitimate exercise of their rights, they had every
reason to defend themselves and their rights from any assault or unlawful transgression. Yet the police
blotter, about adverted to, attests that they did not resort to violence.

The heated altercations and occasional blows exchanged on the picket line do not affect or diminish
the right to strike. Persuasive on this point is the following commentary: .

We think it must be conceded that some disorder is unfortunately quite usual in any
extensive or long drawn out strike. A strike is essentially a battle waged with economic
weapons. Engaged in it are human beings whose feelings are stirred to the depths.
Rising passions call forth hot words. Hot words lead to blows on the picket line. The
transformation from economic to physical combat by those engaged in the contest is
difficult to prevent even when cool heads direct the fight. Violence of this nature,
however much it is to be regretted, must have been in the contemplation of the
Congress when it provided in Sec. 13 of Act 29 USCA Sec. 163, that nothing therein
should be construed so as to interfere with or impede or diminish in any way the right
to strike. If this were not so, the rights afforded to employees by the Act would indeed
be illusory. We accordingly recently held that it was not intended by the Act that minor
 disorders of this nature would deprive a striker of the possibility of reinstatement.
(Republic Steel Corp. v. N. L. R. B., 107 F2d 472, cited in Mathews, Labor Relations
and the Law, p. 378)

Hence the incident that occurred between Ner, et al. and Ramon Garcia was but a necessary incident
of the strike and should not be considered as a bar to reinstatement. Thus it has been held that:

Fist-fighting between union and non-union employees in the midst of a strike is no bar to reinstatement.
(Teller, Labor Disputes and Collective Bargaining, Vol. II, p. 855 citing Stackpole Carbon, Co. 6 NLRB
171, enforced 105 F2d 167.)

Furthermore, assuming that the acts committed by the strikers were transgressions of law, they
amount only to mere ordinary misdemeanors and are not a bar to reinstatement.

In cases involving misdemeanors the board has generally held that unlawful acts are not bar to
reinstatement. (Teller, Labor Disputes and Collective Bargaining, Id., p. 854, citing Ford Motor
Company, 23 NLRB No. 28.)

Finally, it is not disputed that despite the pendency of criminal charges against non-striking employees
before the fiscal's office, they were readily admitted, but those strikers who had pending charges in
the same office were refused readmission. The reinstatement of the strikers is thus in order.

[W]here the misconduct, whether in reinstating persons equally guilty with those whose
reinstatement is opposed, or in other ways, gives rise to the inference that union
activities rather than misconduct is the basis of his [employer] objection, the Board has
usually required reinstatement." (Teller, supra, p. 853, citing the Third Annual Report
of NLRB [1938], p. 211.)

Lastly, the lower Court justified the constructive dismissal of Florencio Ibarra allegedly because he
committed acts inimical to the interest of the respondents when, as president of the FGU Workers and
Employees Association-NATU, he advised the strikers that they could use force and violence to have
a successful picket and that picketing was precisely intended to prevent the non-strikers and company
clients and customers from entering the Companies' buildings. Even if this were true, the record
discloses that the picket line had been generally peaceful, and that incidents happened only when
management men made incursions into and tried to break the picket line. At any rate, with or without
the advice of Ibarra, picketing is inherently explosive. For, as pointed out by one author, "The picket
line is an explosive front, charged with the emotions and fierce loyalties of the union-management
dispute. It may be marked by colorful name-calling, intimidating threats or sporadic fights between the
pickets and those who pass the line." (Mathews, Labor Relations and the Law, p. 752). The picket line
being the natural result of the respondents' unfair labor practice, Ibarra's misconduct is at most a
misdemeanor which is not a bar to reinstatement. Besides, the only evidence presented by the
Companies regarding Ibarra's participation in the strike was the testimony of one Rodolfo Encarnacion,
a former member of the board of directors of the petitioner FGU Insurance Group Workers and
Employees Union-NATU, who became a "turncoat" and who likewise testified as to the union activities
of Atty. Lacsina, Ricardo Villaruel and others (annex C, Decision, p. 27) — another matter which
emphasizes the respondents' unfair labor practice. For under the circumstances, there is good ground
to believe that Encarnacion was made to spy on the actvities of the union members. This act of the
respondents is considered unjustifiable interference in the union activities of the petitioners and is
unfair labor practice.

It has been held in a great number of decisions at espionage by an employer of union

activities, or surveillance thereof, are such instances of interference, restraint or
 coercion of employees in connection with their right to organize, form and join unions
as to constitute unfair labor practice.

... "Nothing is more calculated to interfere with, restrain and coerce employees in the
exercise of their right to self-organization than such activity even where no discharges
result. The information obtained by means of espionage is in valuable to the employer
and can be used in a variety of cases to break a union." The unfair labor practice is
committed whether the espionage is carried on by a professional labor spy or
detective, by officials or supervisory employees of the employer, or by fellow
employees acting at the request or direction of the employer, or an ex-employee..."
(Teller, Labor Disputes and Collective Bargaining, Vol. II, pp. 765-766, and cases
cited.) .

IV. The lower court should have ordered the reinstatement of the officials and members of the Unions,
with full back wages from June 2, 1958 to the date of their actual reinstatement to their usual
employment. Because all too clear from the factual and environmental milieu of this case, coupled
with settled decisional law, is that the Unions went on strike because of the unfair labor practices
committed by the respondents, and that when the strikers reported back for work — upon the invitation
of the respondents — they were discriminatorily dismissed. The members and officials of the Unions
therefore are entitled to reinstatement with back pay.

[W]here the strike was induced and provoked by improper conduct on the part of an
employer amounting to an 'unfair labor practice,' the strikers are entitled to
reinstatement with back pay. (Rothenberg on Labor Relations, p. 418.)

[A]n employee who has been dismissed in violation of the provisions of the Act is
entitled to reinstatement with back pay upon an adjudication that the discharge was
illegal." (Id., citing Waterman S. S. Corp. v. N. L. R. B., 119 F2d 760; N. L. R. B. v.
Richter's Bakery, 140 F2d 870; N. L. R. B. v. Southern Wood Preserving Co., 135 F.
2d 606; C. G. Conn, Ltd. v. N. L. R. B., 108 F2d 390; N. L. R. B. v. American Mfg. Co.,
106 F2d 61; N. L. R. B. v. Kentucky Fire Brick Co., 99 F2d 99.)

And it is not a defense to reinstatement for the respondents to allege that the positions of these union
members have already been filled by replacements.

[W]here the employers' "unfair labor practice" caused or contributed to the strike or
where the 'lock-out' by the employer constitutes an "unfair labor practice," the employer
cannot successfully urge as a defense that the striking or lock-out employees position
has been filled by replacement. Under such circumstances, if no job sufficiently and
satisfactorily comparable to that previously held by the aggrieved employee can be
found, the employer must discharge the replacement employee, if necessary, to
restore the striking or locked-out worker to his old or comparable position ... If the
employer's improper conduct was an initial cause of the strike, all the strikers are
entitled to reinstatement and the dismissal of replacement employees wherever
necessary; ... . (Id., p. 422 and cases cited.)

A corollary issue to which we now address ourselves is, from what date should the backpay payable
to the unionists be computed? It is now a settled doctrine that strikers who are entitled to reinstatement
are not entitled to back pay during the period of the strike, even though it is caused by an unfair labor
practice. However, if they offer to return to work under the same conditions just before the strike, the
refusal to re-employ or the imposition of conditions amounting to unfair labor practice is a violation of
section 4(a) (4) of the Industrial Peace Act and the employer is liable for backpay from the date of the
offer (Cromwell Commercial Employees and Laborers Union vs. Court of Industrial Relations, L-19778,
Decision, Sept. 30, 1964, 12 SCRA 124; Id., Resolution on motion for reconsideration, 13 SCRA
258; see also Mathews, Labor Relations and the Law, p. 730 and the cited cases). We have likewise
ruled that discriminatorily dismissed employees must receive backpay from the date of the act of
discrimination, that is, from the date of their discharge (Cromwell Commercial Employees and
Laborers Union vs. Court of Industrial Relations, supra).

The respondents notified the petitioner strikers to report back for work on June 2, 1958, which the
latter did. A great number of them, however, were refused readmission because they had criminal
charges against them pending before the fiscal's office, although non-strikers who were also facing
criminal indictments were readily readmitted. These strikers who were refused readmission on June
2, 1958 can thus be categorized as discriminatorily dismissed employees and are entitled to backpay
from said date. This is true even with respect to the petitioners Jose Pilapil, Paulino Bugay, Jr. and
Jose Garcia, Jr. who were found guilty only of misdemeanors which are not considered sufficient to
bar reinstatement (Teller, Labor Disputes and Collective Bargaining, p. 854), especially so because
their unlawful acts arose during incidents which were provoked by the respondents' men. However,
since the employees who were denied readmission have been out of the service of the Companies
(for more than ten years) during which they may have found other employment or other means of
livelihood, it is only just and equitable that whatever they may have earned during that period should
be deducted from their back wages to mitigate somewhat the liability of the company, pursuant to the
equitable principle that no one is allowed to enrich himself at the expense of another (Macleod & Co.
of the Philippines v. Progressive Federation of Labor, 97 Phil. 205 [1955]).

The lower court gave inordinate significance to the payment to and acceptance by the dismissed
employees of separation pay. This Court has ruled that while employers may be authorized under
Republic Act 1052 to terminate employment of employees by serving the required notice, or, in the
absence thereof, by paying the required compensation, the said Act may not be invoked to justify a
dismissal prohibited by law, e.g., dismissal for union activities.

... While Republic Act No. 1052 authorizes a commercial establishment to terminate
the employment of its employee by serving notice on him one month in advance, or, in
the absence thereof, by paying him one month compensation from the date of the
termination of his employment, such Act does not give to the employer a blanket
authority to terminate the employment regardless of the cause or purpose behind such
termination. Certainly, it cannot be made use of as a cloak to circumvent a final order
of the court or a scheme to trample upon the right of an employee who has been the
victim of an unfair labor practice. (Yu Ki Lam, et al. v. Nena Micaller, et al., 99 Phil. 904
[1956].)

Finally, we do not share the respondents' view that the findings of fact of the Court of Industrial
Relations are supported by substantial and credible proof. This Court is not therefore precluded from
digging deeper into the factual milieu of the case (Union of Philippine Education Employees v.
Philippine Education Company, 91 Phil. 93; Lu Do & Lu Ym Corporation v. Philippine-Land-Air-Sea
Labor Union, 11 SCRA 134 [1964]).

V. The petitioners (15 of them) ask this Court to cite for contempt the respondent Presiding Judge
Arsenio Martinez of the Court of Industrial Relations and the counsels for the private respondents, on
the ground that the former wrote the following in his decision subject of the instant petition for certiorari,
while the latter quoted the same on pages 90-91 of the respondents' brief: .

... Says the Supreme Court in the following decisions:

 In a proceeding for unfair labor practice, involving a determination as
to whether or not the acts of the employees concerned justified the
adoption of the employer of disciplinary measures against them, the
mere fact that the employees may be able to put up a valid defense in
a criminal prosecution for the same acts, does not erase or neutralize
the employer's right to impose discipline on said employees. For it is
settled that not even the acquittal of an employee of the criminal charge
against him is a bar to the employer's right to impose discipline on its
employees, should the act upon which the criminal charged was based
constitute nevertheless an activity inimical to the employer's
interest... The act of the employees now under consideration may be
considered as a misconduct which is a just cause for dismissal. (Lopez,
Sr., et al. vs. Chronicle Publication Employees Ass'n. et al., G.R. No.
L-20179-81, December 28, 1964.) (emphasis supplied)

The two pertinent paragraphs in the above-cited decision * which contained the underscored portions
of the above citation read however as follows:

Differently as regard the dismissal of Orlando Aquino and Carmelito Vicente, we are
inclined to uphold the action taken by the employer as proper disciplinary measure. A
reading of the article which allegedly caused their dismissal reveals that it really
contains an insinuation albeit subtly of the supposed exertion of political pressure by
the Manila Chronicle management upon the City Fiscal's Office, resulting in the non-
filing of the case against the employer. In rejecting the employer's theory that the
dismissal of Vicente and Aquino was justified, the lower court considered the article as
"a report of some acts and omissions of an Assistant Fiscal in the exercise of his official
functions" and, therefore, does away with the presumption of malice. This being a
proceeding for unfair labor practice, the matter should not have been viewed or gauged
in the light of the doctrine on a publisher's culpability under the Penal Code. We are
not here to determine whether the employees' act could stand criminal prosecution,
but only to find out whether the aforesaid act justifies the adoption by the employer of
disciplinary measure against them. This is not sustaining the ruling that the publication
in question is qualified privileged, but even on the assumption that this is so, the
exempting character thereof under the Penal Code does not necessarily erase or
neutralize its effect on the employer's interest which may warrant employment of
disciplinary measure. For it must be remembered that not even the acquittal of an
employee, of the criminal charges against him, is a bar to the employer's right to
impose discipline on its employees, should the act upon which the criminal charges
was based constitute nevertheless an activity inimical to the employer's interest.

In the herein case, it appears to us that for an employee to publish his "suspicion,"
which actually amounts to a public accusation, that his employer is exerting political
pressure on a public official to thwart some legitimate activities on the employees,
which charge, in the least, would sully the employer's reputation, can be nothing but
an act inimical to the said employer's interest. And the fact that the same was made in
the union newspaper does not alter its deleterious character nor shield or protect a
reprehensible act on the ground that it is a union activity, because such end can be
achieved without resort to improper conduct or behavior. The act of the employees
now under consideration may be considered as a misconduct which is a just cause for
dismissal.** (Emphasis ours)

It is plain to the naked eye that the 60 un-underscored words of the paragraph quoted by the
respondent Judge do not appear in the pertinent paragraph of this Court's decision in L-20179-81.
Moreover, the first underscored sentence in the quoted paragraph starts with "For it is settled ..."
whereas it reads, "For it must be remembered ...," in this Court's decision. Finally, the second and last
underlined sentence in the quoted paragraph of the respondent Judge's decision, appears not in the
same paragraph of this Court's decision where the other sentence is, but in the immediately
succeeding paragraph.

This apparent error, however, does not seem to warrant an indictment for contempt against the
respondent Judge and the respondents' counsels. We are inclined to believe that the misquotation is
more a result of clerical ineptitude than a deliberate attempt on the part of the respondent Judge to
mislead. We fully realize how saddled with many pending cases are the courts of the land, and it is
not difficult to imagine that because of the pressure of their varied and multifarious work, clerical errors
may escape their notice. Upon the other hand, the respondents' counsels have the prima facie right
to rely on the quotation as it appears in the respondent Judge's decision, to copy it verbatim, and to
incorporate it in their brief. Anyway, the import of the underscored sentences of the quotation in the
respondent Judge's decision is substantially the same as, and faithfully reflects, the particular ruling in
this Court's decision, i.e., that "[N]ot even the acquittal of an employee, of the criminal charges against
him, is a bar to the employer's right to impose discipline on its employees, should the act upon which
the criminal charges were based constitute nevertheless an activity inimical to the employer's interest."

Be that as it may, we must articulate our firm view that in citing this Court's decisions and rulings, it is
the bounden duty of courts, judges and lawyers to reproduce or copy the same word-for-word and
punctuation mark-for-punctuation mark. Indeed, there is a salient and salutary reason why they should
do this. Only from this Tribunal's decisions and rulings do all other courts, as well as lawyers and
litigants, take their bearings. This is because the decisions referred to in article 8 of the Civil Code
which reads, "Judicial decisions applying or interpreting the laws or the Constitution shall form a part
of the legal system of the Philippines," are only those enunciated by this Court of last resort. We said
in no uncertain terms in Miranda, et al. vs. Imperial, et al. (77 Phil. 1066) that "[O]nly the decisions of
this Honorable Court establish jurisprudence or doctrines in this jurisdiction." Thus, ever present is the
danger that if not faithfully and exactly quoted, the decisions and rulings of this Court may lose their
proper and correct meaning, to the detriment of other courts, lawyers and the public who may thereby
be misled. But if inferior courts and members of the bar meticulously discharge their duty to check and
recheck their citations of authorities culled not only from this Court's decisions but from other sources
and make certain that they are verbatim reproductions down to the last word and punctuation mark,
appellate courts will be precluded from acting on misinformation, as well as be saved precious time in
finding out whether the citations are correct.

Happily for the respondent Judge and the respondents' counsels, there was no substantial change in
the thrust of this Court's particular ruling which they cited. It is our view, nonetheless, that for their
mistake, they should be, as they are hereby, admonished to be more careful when citing jurisprudence
in the future. ACCORDINGLY, the decision of the Court of Industrial Relations dated August 17, 1965
is reversed and set aside, and another is entered, ordering the respondents to reinstate the dismissed
members of the petitioning Unions to their former or comparatively similar positions, with backwages
from June 2, 1958 up to the dates of their actual reinstatements. Costs against the respondents.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Fernando, Teehankee, Barredo, Villamor and
Makasiar, JJ., concur.

Zaldivar, J., took no part.

Adm. Case No. 5530 January 28, 2013

SPOUSES ARCING AND CRESING BAUTISTA, EDAY RAGADIO and FRANCING

GALGALAN, Complainants,
vs.
ATTY. ARTURO CEFRA, Respondent.

DECISION

BRION, J.:

Before us is a complaint for disbarment filed by spouses Arcing and Cresing Bautista, Eday
Regadio1 and Francing Galgalan (complainants) against Atty. Arturo Cefra for violating Canon 18 of
the Code of Professional Responsibility and Rules 138 and 139 of the Rules of Court.

The Facts

The complainants were the defendants in Civil Case No. U-6504 an action for quieting of title, recovery
of possession and damages filed in the Regional Trial Court (RTC), Branch 45, Urdaneta City,
Pangasinan.2 The complainants engaged the services of Atty. Cefra to represent them in the
proceedings. According to the complainants, they lost in Civil Case No. U-6504 because of Atty.
Cefra’s negligence in performing his duties as their counsel. First, Atty. Cefra only presented
testimonial evidence and disregarded two (2) orders of the RTC directing him to submit a formal offer
of documentary exhibits. Second, Atty. Cefra belatedly submitted the formal offer of documentary
exhibits after the complainants had been declared to have waived their right to make a submission.
Third, Atty. Cefra did not file a motion or appeal and neither did he file any other remedial pleading to
contest the RTC’s decision rendered against them.

The Court ordered Atty. Cefra to comment on the complaint. Despite the extensions of time given by
the Court, Atty. Cefra did not file any comment. He did not also comply with the Court’s Minute
Resolutions,3 dated December 14, 2005 and March 22, 2006, directing him to pay a ₱2,000.00 fine
and to submit the required comment.

On July 16, 2008, we held Atty. Cefra in contempt of court, ordering his detention for five (5) days. We
also reiterated the order for Atty. Cefra to pay a ₱2,000.00 fine and to submit a comment on the
complaint.4

On August 4, 2008, Atty. Cefra filed his Comment,5 denying the allegations in the complaint. He
claimed that the complainants misunderstood the RTC’s decision:

2. That Respondent denies the allegation in Paragraphs (sic) 7 of the complaint that
defendants miserably lost the case because the Decision itself confirmed and affirmed our
stand that defendants do not contest the ownership of x x x Serlito Evangelista x x x.

3. That it was defendants (sic) failure to fully understand the Decision which led to the filing of
this administrative case and which subsequent events have proven that in the implementation
of the Writ of Execution the land owned by the defendants covered by Transfer Certificates of
Titles were not affected.6

In a Minute Resolution7 dated September 24, 2008, we referred the case to the Integrated Bar of the
Philippines (IBP) for investigation, report and recommendation/decision.
The Report and Recommendation of the IBP

On June 11, 2009, the Investigating Commissioner8 recommended the dismissal of the complaint. The
Investigating Commissioner opined:

The administrative complaint failed to show sufficient evidence to warrant disciplinary action against
respondent. Complainants filed this complaint because they believed that they lost their case,
however, their claim over their properties was not affected by the Decision of the court.9

In Resolution No. XIX-2010-285 dated April 16, 2010, the IBP Board of Governors reversed the
findings of the Investigating Commissioner. The IBP Board of Governors found Atty. Cefra negligent
in handling the complainants’ case and unanimously approved his suspension from the practice of law
for six (6) months.

Atty. Cefra filed a motion for reconsideration. On January 14, 2012, in Resolution No. XX-2012-24, the
IBP Board of Governors partially granted Atty. Cefra’s motion in this wise:

RESOLVED to PARTIALLY GRANT Respondent’s Motion for Reconsideration and unanimously

MODIFY Resolution No. XIX-2010-285 dated April 16, 2010 Suspending Atty. Arturo B. Cefra from the
practice of law for six (6) months to REPRIMANDED considering that the failure was not material to
the case and that complainants were not prejudice. [emphasis supplied]

The Court’s Ruling

Except for the recommended penalty, we agree with the IBP Board of Governors that Atty. Cefra has
been guilty of negligence in handling the complainants’ case. His actuations in the present
administrative case also reveal his lack of diligence in performing his duties as an officer of the Court.

The Code of Professional Responsibility mandates that "a lawyer shall serve his client with
competence and diligence."10

It further states that "a lawyer shall not neglect a legal matter entrusted to him, and his negligence in
connection therewith shall render him liable."11 In addition, a lawyer has the corresponding duty to
"keep the client informed of the status of his case."12

In Jardin v. Villar, Jr.,13 the Court held:

Every case a lawyer accepts deserves his full attention, diligence, skill and competence, regardless
of its importance and whether he accepts it for a fee or free. Certainly, a member of the Bar who is
worth his title cannot afford to practice the profession in a lackadaisical fashion. A lawyer’s lethargy
from the perspective of the Canons is both unprofessional and unethical.

Atty. Cefra failed to live up to these standards. Interestingly, he did not deny the complainants’
allegations and impliedly admitted his actions in the proceedings in Civil Case No. U-6504.

The records further substantiate clear acts of negligence on Atty. Cefra’s part in handling the
complainants’ case.

First, Atty. Cefra failed to submit a formal offer of documentary evidence within the period
given by the RTC. Atty. Cefra submitted a formal offer of documentary evidence five (5) months
after the RTC’s first order directing him to make a formal offer. The formal offer of evidence
 was only made after the complainants had been declared by the RTC to have waived their
right to submit a formal offer of documentary evidence.

Second, Atty. Cefra failed to comply with the two (2) orders of the RTC directing him to submit
a formal offer of documentary evidence. He made no effort to submit the required formal offer
of documentary evidence within the prescribed period. Neither did he give his reasons, within
the required period, on why he could not make the required formal offer of documentary
evidence. In fact, Atty. Cefra’s belated explanation for this omission was only done in a motion
for reconsideration (with motion to admit the formal offer of documentary evidence) that he
subsequently filed, which motion the RTC denied for lack of merit.

Third, Atty. Cefra failed to file an appropriate motion or appeal, or avail of any remedial
measure to contest the RTC’s decision. His claim that the complainants had not been
prejudiced by the RTC’s decision is incorrect. The dispositive portion of the RTC’s decision
clearly adjudged the complainants liable to pay ₱30,000.00 moral damages.14 Considering the
pecuniary consequence of the RTC’s decision to his clients, Atty. Cefra should have filed a
motion for reconsideration before the RTC or appealed the RTC’s decision with the Court of
Appeals, or he should have at least immediately explained to his clients his reasons for not
taking remedial action. The failure to avail of available remedial measures apparently
prejudiced his clients. As matter now stands, the complainants’ liability under the RTC’s
decision is already final and executory.

Fourth, Atty. Cefra’s allegations in his Comment show his failure to effectively communicate
with the complainants. As Atty. Cefra puts it, the administrative complaint was the result of the
complainants’ failure to fully understand the RTC’s decision. In other words, he admits that the
present case would have been averted had he exerted reasonable efforts to inform the
complainants of the legal implications of the RTC’s decision and to explain to them the material
developments in the case.

We significantly note that even before this Court, Atty. Cefra’s conduct was less than what is expected
of an officer of the Court. He was held in contempt for his cavalier and indifferent attitude in complying
with the Court’s directives.

In sum, the above actuations showing Atty. Cefra’s lack of diligence and inattention to his duties as a
lawyer warrant disciplinary sanction. We have repeatedly held that "[t]he practice of law is a privilege
bestowed by the State on those who show that they possess the legal qualifications for it.

Lawyers are expected to maintain at all times a high standard of legal proficiency and morality,
including honesty, integrity and fair dealing. They must perform their fourfold duty to society, the legal
profession, the courts and their clients, in accordance with the values and norms of the legal profession
as embodied in the Code of Professional Responsibility.15

Under the circumstances, the IBP Board of Governors’ recommended penalty of simple reprimand is
not commensurate with the gravity of Atty. Cefra’s infractions. As the complainants incurred pecuniary
damage by reason of Atty. Cefra’s negligence, a suspension of one (1) year from the practice of law
is in order.16

WHEREFORE, premises considered, we find Atty. Arturo Cefra guilty of negligence, in violation of
Rules 18.03 and 18.04 of the Code of Professional Responsibility. He is hereby SUSPENDED from
the practice of law for one (1) year and STERNLY WARNED that a repetition of the same or similar
offense will be dealt with more severely.
Let a copy of this Decision be furnished to the Office of the Bar Confidant, the Integrated Bar of the
Philippines, and the Office of the Court Administrator for circulation to all the courts.

SO ORDERED.

ARTURO D. BRION
Associate Justice