Genesis 18:16-32 New Living Translation (NLT)

26 And the LORD replied, “If I find fifty righteous people in Sodom, I will
Abraham Intercedes for Sodom spare the entire city for their sake.”

16 Then the men got up from their meal and looked out toward Sodom. 27 Then Abraham spoke again. “Since I have begun, let me speak

As they left, Abraham went with them to send them on their way. further to my Lord, even though I am but dust and ashes. 28 Suppose

there are only forty-five righteous people rather than fifty? Will you
17 “Should I hide my plan from Abraham?” the LORD asked. 18 “For
destroy the whole city for lack of five?”
Abraham will certainly become a great and mighty nation, and all the

nations of the earth will be blessed through him. 19 I have singled him And the LORD said, “I will not destroy it if I find forty-five righteous

out so that he will direct his sons and their families to keep the way of people there.”

the LORD by doing what is right and just. Then I will do for Abraham
29 Then Abraham pressed his request further. “Suppose there are only
all that I have promised.”
forty?”
20 So the LORD told Abraham, “I have heard a great outcry from Sodom
And the LORD replied, “I will not destroy it for the sake of the forty.”
and Gomorrah, because their sin is so flagrant. 21 I am going down to

see if their actions are as wicked as I have heard. If not, I want to

30 “Please don’t be angry, my Lord,” Abraham pleaded. “Let me speak—

know.” suppose only thirty righteous people are found?”

22 The other men turned and headed toward Sodom, but And the LORD replied, “I will not destroy it if I find thirty.”

the LORD remained with Abraham. 23 Abraham approached him and 31 Then Abraham said, “Since I have dared to speak to the Lord, let me
said, “Will you sweep away both the righteous and the continue—suppose there are only twenty?”
wicked? 24 Suppose you find fifty righteous people living there in the
And the LORD replied, “Then I will not destroy it for the sake of the
city—will you still sweep it away and not spare it for their
twenty.”
sakes? 25 Surely you wouldn’t do such a thing, destroying the

righteous along with the wicked. Why, you would be treating the 32 Finally, Abraham said, “Lord, please don’t be angry with me if I
righteous and the wicked exactly the same! Surely you wouldn’t do speak one more time. Suppose only ten are found there?”
that! Should not the Judge of all the earth do what is right?”

And the LORD replied, “Then I will not destroy it for the sake of the
ten.”
Thomas More was born in London on February 7, 1478. His father, Sir
John More, was a lawyer and judge who rose to prominence during
the reign of Edward IV. His connections and wealth would help his
son, Thomas, rise in station as a young man. Thomas' mother was
Agnes Graunger, the first wife of John More. John would have four
wives during his life, but they each died, leaving John as a widower.
Thomas had two brothers and three sisters, but three of his siblings
died within a year of their birth. Such tragedies were common in
England during this time.It is likely that Thomas was positively
influenced from a young age by his mother and siblings. He also
attended St. Anthony's School, which was said to be one of the best
schools in London at that time. In 1490, he became a household page
to John Morton, the Archbishop of Canterbury and Lord Chancellor of
England. Archbishop Morton was a Renaissance man and inspired
Thomas to pursue his own education.
Thomas More entered Oxford in 1492, where he would learn Latin,
Greek and prepare for his future studies. In 1494, he left Oxford to
become a lawyer and he trained in London until 1502 when he was
finally approved to begin practice.
Almost as soon as More became a lawyer, he found himself
contemplating another path in life. For two years, between 1503 and
1504, More lived next to a Carthusian monastery and he found himself
called to follow their lifestyle of simple piety. He often joined their
spiritual exercises.
By 1504, More had decided to remain in the secular world, and stood
for election to Parliament. But he did not forget the pious monks who
inspired his practice of the faith.
Thomas More married his first wife, Jane Colt in 1505. They would
have four children together before her death in 1511. Their marriage
was reportedly happy and Thomas often tutored her in music and
literature.
After Jane's death in 1511, Thomas quickly remarried to Alice Harpur
Middleton, who was a wealthy widow. Alice was not particularly
attractive, and her temperament was less docile than Jane's. The
wedding took place less than a month after Jane's passing and was
poorly received by his friends.
It was rumored that Thomas married her because he wanted a
stepmother for his four children, and she was a woman of wealth and
means. It is believed the pair knew each other for some time prior to
their marriage. They would have no children together. Thomas
accepted Alice's daughter from her previous marriage as his own.
Thomas was considered a doting father, and he often wrote letters to
his children when he was away on work. He also insisted that his
daughters receive the same education as his son. His daughters were
well known for their academic accomplishments.
In 1504, More was elected to Parliament to represent the region of
Great Yarmouth, and in 1510 rose to represent London. During his
service to the people of London, he earned a reputation as being honest
and effective. He became a Privy Counselor in 1514.
More also honed his skills as a theologian and a writer. Among his
most famous works is "Utopia," about a fictional, idealistic island
society. The work is widely regarded as part satire, part social
commentary, part suggestion. Utopia is considered one of the greatest
works of the late Renaissance and was widely read during the
Enlightenment period. It remains well by scholars read today.
From 1517 on, Henry VIII took a liking to Thomas More, and gave him
posts of ever increasing responsibility. In 1521, he was knighted and
made Under-Treasurer of the Exchequer.
The King's trust in More grew with time and More was soon made
Chancellor of the Duchy of Lancaster, which gave him authority over
the northern portion of England on behalf of Henry.
More became Lord Chancellor in 1529.
More was immediately effective, working with speed and precision that
is admired today. He was likely one of Henry VIII's most effective
servants, and was fiercely loyal to the king.
During his tenure as Lord Chancellor, More prosecuted those accused
of heresy and worked tirelessly to defend the Catholic faith in England.
This was an arduous, but achievable task as long as he enjoyed
Henry's favor. However, in 1530, as Henry worked to obtain an
annulment from his wife, Catherine, Moore refused to sign a letter to
the Pope, requesting an annulment. This was More's first time crossing
Henry.
The relationship between More and Henry became strained again
when seeking to isolate More, Henry purged many of the clergy who
supported the Pope. It became clear to all that Henry was prepared to
break away from the Church in Rome, something More knew he could
not condone.
In 1532, More found himself unable to work for Henry VIII, whom he
felt had lost his way as a Catholic. Faced with the prospect of being
compelled to actively support Henry's schism with the Church, More
offered his resignation, citing failing health. Henry accepted it,
although he was unhappy with what he viewed as flagging loyalty.
In 1533, More refused to attend the coronation of Anne Boylen, who
was now the Queen of England. More instead wrote a letter of
congratulations. The letter, as opposed to his direct presence offended
Henry greatly. The king viewed More's absence as an insult to his new
queen and an undermining of his authority as head of the church and
state.
Henry then had charges trumped up against More, but More's own
integrity protected him. In the first instance, he was accused of
accepting bribes, but there was simply no evidence that could be
obtained or manufactured. He was then accused of conspiracy against
the king, because he allegedly consulted with a nun who prophesied
against Henry and his wife, Anne. However, More was able to produce
a letter in which he specifically instructed the nun, Elizabeth Barton,
not to interfere with politics.
On April 13, 1534, More was ordered to take an oath, acknowledging
the legitimicies of Anne's position as queen, of Henry's self-granted
annulment from Catherine, and the superior position of the King as
head of the church. More accepted Henry's marriage to Anne, but
refused to acknowledge Henry as head of the church, or his annulment
from Catherine. This led to his arrest and imprisonment. He was
locked away in the Tower of London.
He faced trial on July 1 and was convicted by a court that included
Anne Boylen's own father, brother and uncle, hardly an impartial jury.
Still, More had one thing going for him. He could not break the law of
which he was accused if he remained silent. However, he had no
defense against treachery, and several dubious witnesses were able to
contrive a story that he had spoken words that had the same effect as
treason.
Despite a brilliant defense of himself and persuasive testimony,
grounded in truth and fact, More was convicted in fifteen minutes. The
court sentenced him to be hanged, drawn, and quartered, which was
the traditional punishment for treason.
Henry was pleased with the outcome, although likely upset that one
of his favorite advisers refused, even upon pain of death, to sanction
his annulment and break from Rome. Henry was a Machiavellian king
and while he may have regretted the loss of More, he was more intent
upon retaining his authority.
As a final act of mercy, Henry commuted More's punishment to mere
decapitation.
More ascended the scaffold on July 6, 1535, joking to his executioners
to help him up the scaffold, but that he would see himself down. He
then made a final statement, proclaiming that he was "the king's good
servant, but God's first."
Following his death, it was revealed that More wore a hair shirt, a
garment destined to be itchy, and worn to as a sign of atonement and
repentance. It became obvious to all that he was a man of deep piety,
asceticism, voluntary self discipline, and penitence.
More's decapitated body was buried in the Chapel of St. Peter ad
Vincula at the Tower of London, in an unmarked grave. His head was
put on display, but his daughter Margaret possibly bribed someone to
take it down. The skull may be in the vault of a church in Canterbury.
Thomas More has been widely remembered as a man of tremendous
integrity, and he has since been described as a martyr and canonized
a saint.
Pope Leo XIII beatified More in 1886, and he was canonized by Pope
Pius XI on May 19, 1935.
His feast day is June 22.
He is the patron saint of adopted children lawyers, civil servants,
politicians, and difficult marriages.
Mahatma Gandhi, byname of Mohandas Karamchand Gandhi, (born
October 2, 1869, Porbandar, India—died January 30, 1948,
Delhi), Indian lawyer, politician, social activist, and writer who
became the leader of the nationalist movement against the British rule
of India. As such, he came to be considered the father of his
country. Gandhi is internationally esteemed for his doctrine
of nonviolent protest (satyagraha) to achieve political and social
progress.
In the eyes of millions of his fellow Indians, Gandhi was the Mahatma
(“Great Soul”). The unthinking adoration of the huge crowds that
gathered to see him all along the route of his tours made them a severe
ordeal; he could hardly work during the day or rest at night. “The woes
of the Mahatmas,” he wrote, “are known only to the Mahatmas.” His
fame spread worldwide during his lifetime and only increased after his
death. The name Mahatma Gandhi is now one of the most universally
recognized on earth.
Youth
Gandhi was the youngest child of his father’s fourth wife. His father—
Karamchand Gandhi, who was the dewan (chief minister)
of Porbandar, the capital of a small principality in western India (in
what is now Gujarat state) under British suzerainty—did not have
much in the way of a formal education. He was, however, an able
administrator who knew how to steer his way between
the capricious princes, their long-suffering subjects, and the
headstrong British political officers in power.
Gandhi’s mother, Putlibai, was completely absorbed in religion, did
not care much for finery or jewelry, divided her time between her home
and the temple, fasted frequently, and wore herself out in days and
nights of nursing whenever there was sickness in the family.
Mohandas grew up in a home steeped in Vaishnavism—worship of
the Hindu god Vishnu—with a strong tinge of Jainism, a morally
rigorous Indian religion whose chief tenets are nonviolence and the
belief that everything in the universe is eternal. Thus, he took for
granted ahimsa (noninjury to all living
beings), vegetarianism, fasting for self-purification, and mutual
tolerance between adherents of various creeds and sects.
The educational facilities at Porbandar were rudimentary; in
the primary school that Mohandas attended, the children wrote the
alphabet in the dust with their fingers. Luckily for him, his father
became dewan of Rajkot, another princely state. Though Mohandas
occasionally won prizes and scholarships at the local schools, his
record was on the whole mediocre. One of the terminal reports rated
him as “good at English, fair in Arithmetic and weak in Geography;
conduct very good, bad handwriting.” He was married at the age of 13
and thus lost a year at school. A diffident child, he shone neither in
the classroom nor on the playing field. He loved to go out on long
solitary walks when he was not nursing his by then ailing father (who
died soon thereafter) or helping his mother with her household chores.
He had learned, in his words, “to carry out the orders of the elders,
not to scan them.” With such extreme passivity, it is not surprising
that he should have gone through a phase of adolescent rebellion,
marked by secret atheism, petty thefts, furtive smoking, and—most BORN
shocking of all for a boy born in a Vaishnava family—meat eating. His
adolescence was probably no stormier than that of most children of
October 2, 1869
his age and class. What was extraordinary was the way his youthful
transgressions ended. Porbandar, India
“Never again” was his promise to himself after each escapade. And he
kept his promise. Beneath an unprepossessing exterior, he concealed
a burning passion for self-improvement that led him to take even the DIED
heroes of Hindu mythology, such as Prahlada and Harishcandra—
legendary embodiments of truthfulness and sacrifice—as living
January 30, 1948 (aged 78)
models.
In 1887 Mohandas scraped through the matriculation examination of Delhi, India
the University of Bombay (now University of Mumbai) and joined
Samaldas College in Bhavnagar (Bhaunagar). As he had to suddenly
switch from his native language—Gujarati—to English, he found it POLITICAL AFFILIATION
rather difficult to follow the lectures.
Meanwhile, his family was debating his future. Left to himself, he  Indian National Congress
would have liked to have been a doctor. But, besides the
Vaishnava prejudice against vivisection, it was clear that, if he was to ROLE IN
keep up the family tradition of holding high office in one of the states
in Gujarat, he would have to qualify as a barrister. That meant a visit  British Raj
to England, and Mohandas, who was not too happy at Samaldas  Jallianwala Bagh Massacre
College, jumped at the proposal. His youthful imagination conceived  Salt March
England as “a land of philosophers and poets, the very centre of
civilization.” But there were several hurdles to be crossed before the  Noncooperation Movement
visit to England could be realized. His father had left the family little  Round Table Conference
property; moreover, his mother was reluctant to expose her youngest  Poona Pact
child to unknown temptations and dangers in a distant land. But
Mohandas was determined to visit England. One of his brothers raised NOTABLE FAMILY MEMBERS
the necessary money, and his mother’s doubts were allayed when he
took a vow that, while away from home, he would not touch wine,  Spouse Kasturba Gandhi
women, or meat. Mohandas disregarded the last obstacle—the decree
of the leaders of the Modh Bania subcaste (Vaishya caste), to which DID YOU KNOW?
the Gandhis belonged, who forbade his trip to England as a violation
of the Hindu religion—and sailed in September 1888. Ten days after  Time Magazine named Mahatma Gandhi Person of the Year in
his arrival, he joined the Inner Temple, one of the
four London law colleges (The Temple). 1930.

 The United Nations declared Gandhi's birthday, October 2nd,

Mahatma Gandhi as the International Day of Non-violence in 2007.

 Gandhi was nominated for the Nobel Peace Prize five times but
never received the award.
 As a young child Gandhi was very shy and would run home
as soon as school ended to avoid talking to anyone.
 Before taking a vow of celibacy, Mahatma Gandhi had four
sons.
Sojourn In England And Return To India
Gandhi took his studies seriously and tried to brush up on his English
and Latin by taking the University of London matriculation
examination. But, during the three years he spent in England, his
main preoccupation was with personal and moral issues rather than
with academic ambitions. The transition from the half-rural
atmosphere of Rajkot to the cosmopolitan life of London was not easy
for him. As he struggled painfully to adapt himself to Western food,
dress, and etiquette, he felt awkward. His vegetarianism became a
continual source of embarrassment to him; his friends warned him
that it would wreck his studies as well as his health. Fortunately for
him he came across a vegetarian restaurant as well as a book
providing a reasoned defense of vegetarianism, which henceforth
became a matter of conviction for him, not merely a legacy of his
Vaishnava background. The missionary zeal he developed for
vegetarianism helped to draw the pitifully shy youth out of his shell
and gave him a new poise. He became a member of the executive
committee of the London Vegetarian Society, attending its conferences
and contributing articles to its journal.
In the boardinghouses and vegetarian restaurants of England, Gandhi
met not only food faddists but some earnest men and women to whom
he owed his introduction to the Bible and, more important,
the Bhagavadgita, which he read for the first time in its English
translation by Sir Edwin Arnold. The Bhagavadgita (commonly known
as the Gita) is part of the great epic the Mahabharata and, in the form
of a philosophical poem, is the most-popular expression of Hinduism.
The English vegetarians were a motley crowd. They included socialists
and humanitarians such as Edward Carpenter, “the British Thoreau”;
Fabians such as George Bernard Shaw; and Theosophists such
as Annie Besant. Most of them were idealists; quite a few were rebels
who rejected the prevailing values of the late-Victorian establishment,
denounced the evils of the capitalist and industrial society, preached
the cult of the simple life, and stressed the superiority of moral over
material values and of cooperation over conflict. Those ideas were to
contribute substantially to the shaping of Gandhi’s personality and,
eventually, to his politics.
Painful surprises were in store for Gandhi when he returned
to India in July 1891. His mother had died in his absence, and he
discovered to his dismay that the barrister’s degree was not a
guarantee of a lucrative career. The legal profession was already
beginning to be overcrowded, and Gandhi was much too diffident to
elbow his way into it. In the very first brief he argued in a court in
Bombay (now Mumbai), he cut a sorry figure. Turned down even for
the part-time job of a teacher in a Bombay high school, he returned to
Rajkot to make a modest living by drafting petitions for litigants. Even
that employment was closed to him when he incurred the displeasure
of a local British officer. It was, therefore, with some relief that in 1893
he accepted the none-too-attractive offer of a year’s contract from an
Indian firm in Natal, South Africa.
Years In South Africa
Africa was to present to Gandhi challenges and opportunities that he
could hardly have conceived. In the end he would spend more than
two decades there, returning to India only briefly in 1896–97. The
youngest two of his four children were born there.
Emergence as a political and social activist
Gandhi was quickly exposed to the racial discrimination practiced in
South Africa. In a Durban court he was asked by the European
magistrate to take off his turban; he refused and left the courtroom. A
few days later, while traveling to Pretoria, he was unceremoniously
thrown out of a first-class railway compartment and left shivering and
brooding at the rail station in Pietermaritzburg. In the further course
of that journey, he was beaten up by the white driver of a stagecoach
because he would not travel on the footboard to make room for a
European passenger, and finally he was barred from hotels reserved
“for Europeans only.” Those humiliations were the daily lot of Indian
traders and labourers in Natal, who had learned to pocket them with
the same resignation with which they pocketed their meagre earnings.
What was new was not Gandhi’s experience but his reaction. He had
so far not been conspicuous for self-assertion or aggressiveness. But
something happened to him as he smarted under the insults heaped
upon him. In retrospect the journey from Durban to Pretoria struck
him as one of the most-creative experiences of his life; it was his
moment of truth. Henceforth he would not accept injustice as part of
the natural or unnatural order in South Africa; he would defend his
dignity as an Indian and as a man.
While in Pretoria, Gandhi studied the conditions in which his fellow
South Asians in South Africa lived and tried to educate them on their
rights and duties, but he had no intention of staying on in South
Africa. Indeed, in June 1894, as his year’s contract drew to a close, he
was back in Durban, ready to sail for India. At a farewell party given
in his honour, he happened to glance through the Natal Mercury and
learned that the Natal Legislative Assembly was considering a bill to
deprive Indians of the right to vote. “This is the first nail in our coffin,”
Gandhi told his hosts. They professed their inability to oppose the bill,
and indeed their ignorance of the politics of the colony, and begged
him to take up the fight on their behalf.
Until the age of 18, Gandhi had hardly ever read a newspaper. Neither
as a student in England nor as a budding barrister in India had he
evinced much interest in politics. Indeed, he was overcome by a
terrifying stage fright whenever he stood up to read a speech at a social
gathering or to defend a client in court. Nevertheless, in July 1894,
when he was barely 25, he blossomed almost overnight into a
proficient political campaigner. He drafted petitions to the Natal
legislature and the British government and had them signed by
hundreds of his compatriots. He could not prevent the passage of the
bill but succeeded in drawing the attention of the public and the press
in Natal, India, and England to the Natal Indians’ grievances. He was
persuaded to settle down in Durban to practice law and to organize
the Indian community. In 1894 he founded the Natal Indian Congress,
of which he himself became the indefatigable secretary. Through that
common political organization, he infused a spirit of solidarity in
the heterogeneous Indian community. He flooded the government, the
legislature, and the press with closely reasoned statements of Indian
grievances. Finally, he exposed to the view of the outside world the
skeleton in the imperial cupboard, the discrimination practiced
against the Indian subjects of Queen Victoria in one of her own
colonies in Africa. It was a measure of his success as a publicist that
such important newspapers as The Times of London and The
Statesman and Englishman of Calcutta (now Kolkata) editorially
commented on the Natal Indians’ grievances.
In 1896 Gandhi went to India to fetch his wife, Kasturba (or
Kasturbai), and their two oldest children and to canvass support for
the Indians overseas. He met prominent leaders and persuaded them
to address public meetings in the country’s principal cities.
Unfortunately for him, garbled versions of his activities and utterances
reached Natal and inflamed its European population. On landing at
Durban in January 1897, he was assaulted and nearly lynched by a
white mob. Joseph Chamberlain, the colonial secretary in the British
Cabinet, cabled the government of Natal to bring the guilty men to
book, but Gandhi refused to prosecute his assailants. It was, he said,
a principle with him not to seek redress of a personal wrong in a court
of law.
Resistance and results
Gandhi was not the man to nurse a grudge. On the outbreak of
the South African (Boer) War in 1899, he argued that the Indians, who
claimed the full rights of citizenship in the British crown colony of
Natal, were in duty bound to defend it. He raised an ambulance corps
of 1,100 volunteers, out of whom 300 were free Indians and the rest
indentured labourers. It was a motley crowd: barristers and
accountants, artisans and labourers. It was Gandhi’s task to instill in
them a spirit of service to those whom they regarded as their
oppressors. The editor of the Pretoria News offered an insightful
portrait of Gandhi in the battle zone:
After a night’s work which had shattered men with much bigger frames,
I came across Gandhi in the early morning sitting by the roadside eating
a regulation army biscuit. Every man in [General] Buller’s force was dull
and depressed, and damnation was heartily invoked on everything.
But Gandhi was stoical in his bearing, cheerful and confident in his
conversation and had a kindly eye.
The British victory in the war brought little relief to the Indians
in South Africa. The new regime in South Africa was to blossom into a
partnership, but only between Boers and Britons. Gandhi saw that,
with the exception of a few Christian missionaries and youthful
idealists, he had been unable to make a perceptible impression upon
the South African Europeans. In 1906 the Transvaal government
published a particularly humiliating ordinance for the registration of
its Indian population. The Indians held a mass protest meeting
at Johannesburg in September 1906 and, under Gandhi’s leadership,
took a pledge to defy the ordinance if it became law in the teeth of their
opposition and to suffer all the penalties resulting from their defiance.
Thus was born satyagraha (“devotion to truth”), a new technique for
redressing wrongs through inviting, rather than inflicting, suffering,
for resisting adversaries without rancour and fighting them without
violence.
The struggle in South Africa lasted for more than seven years. It had
its ups and downs, but under Gandhi’s leadership, the small Indian
minority kept up its resistance against heavy odds. Hundreds of
Indians chose to sacrifice their livelihood and liberty rather than
submit to laws repugnant to their conscience and self-respect. In the
final phase of the movement in 1913, hundreds of Indians, including
women, went to jail, and thousands of Indian workers who had struck
work in the mines bravely faced imprisonment, flogging, and even
shooting. It was a terrible ordeal for the Indians, but it was also the
worst possible advertisement for the South African government,
which, under pressure from the governments of Britain and India,
accepted a compromise negotiated by Gandhi on the one hand and the
South African statesman Gen. Jan Christian Smuts on the other.
“The saint has left our shores,” Smuts wrote to a friend on Gandhi’s
departure from South Africa for India, in July 1914, “I hope for ever.”
A quarter century later, he wrote that it had been his “fate to be
the antagonist of a man for whom even then I had the highest respect.”
Once, during his not-infrequent stays in jail, Gandhi had prepared a
pair of sandals for Smuts, who recalled that there was no hatred and
personal ill-feeling between them, and when the fight was over “there
was the atmosphere in which a decent peace could be concluded.”
As later events were to show, Gandhi’s work did not provide an
enduring solution for the Indian problem in South Africa. What he did
to South Africa was indeed less important than what South Africa did
to him. It had not treated him kindly, but, by drawing him into the
vortex of its racial problem, it had provided him with the ideal setting
in which his peculiar talents could unfold themselves.
The religious quest
Gandhi’s religious quest dated back to his childhood, the influence of
his mother and of his home life in Porbandar and Rajkot, but it
received a great impetus after his arrival in South Africa.
His Quaker friends in Pretoria failed to convert him to Christianity,
but they quickened his appetite for religious studies. He was
fascinated by the writings of Leo Tolstoy on Christianity, read
the Quʾrān in translation, and delved into Hindu scriptures and
philosophy. The study of comparative religion, talks with scholars,
and his own reading of theological works brought him to the
conclusion that all religions were true and yet every one of them was
imperfect because they were “interpreted with poor intellects,
sometimes with poor hearts, and more often misinterpreted.”
Shrimad Rajchandra, a brilliant young Jain philosopher who became
Gandhi’s spiritual mentor, convinced him of “the subtlety and
profundity” of Hinduism, the religion of his birth. And it was
the Bhagavadgita, which Gandhi had first read in London, that
became his “spiritual dictionary” and exercised probably the greatest
single influence on his life. Two Sanskrit words in the Gita particularly
fascinated him. One was aparigraha (“nonpossession”), which implies
that people have to jettison the material goods that cramp the life of
the spirit and to shake off the bonds of money and property. The other
was samabhava (“equability”), which enjoins people to remain
unruffled by pain or pleasure, victory or defeat, and to work without
hope of success or fear of failure.
Those were not merely counsels of perfection. In the civil case that had
taken him to South Africa in 1893, he had persuaded
the antagonists to settle their differences out of court. The true
function of a lawyer seemed to him “to unite parties riven asunder.”
He soon regarded his clients not as purchasers of his services but as
friends; they consulted him not only on legal issues but on such
matters as the best way of weaning a baby or balancing the family
budget. When an associate protested that clients came even on
Sundays, Gandhi replied: “A man in distress cannot have Sunday
rest.”
Gandhi’s legal earnings reached a peak figure of £5,000 a year, but he
had little interest in moneymaking, and his savings were often sunk
in his public activities. In Durban and later in Johannesburg, he kept
an open table; his house was a virtual hostel for younger colleagues
and political coworkers. This was something of an ordeal for his wife,
without whose extraordinary patience, endurance, and self-effacement
Gandhi could hardly have devoted himself to public causes. As he
broke through the conventional bonds of family and property, their life
tended to shade into a community life.
Gandhi felt an irresistible attraction to a life of simplicity, manual
labour, and austerity. In 1904—after reading John Ruskin’s Unto This
Last, a critique of capitalism—he set up a farm at Phoenix near
Durban where he and his friends could live by the sweat of their brow.
Six years later another colony grew up under Gandhi’s fostering care
near Johannesburg; it was named Tolstoy Farm for the Russian writer
and moralist, whom Gandhi admired and corresponded with. Those
two settlements were the precursors of the more-
famous ashrams (religious retreats) in India, at Sabarmati near
Ahmedabad (Ahmadabad) and at Sevagram near Wardha.
South Africa had not only prompted Gandhi to evolve a novel
technique for political action but also transformed him into a leader of
men by freeing him from bonds that make cowards of most men.
“Persons in power,” the British Classical scholar Gilbert
Murray prophetically wrote about Gandhi in the Hibbert Journal in
1918,
should be very careful how they deal with a man who cares nothing for
sensual pleasure, nothing for riches, nothing for comfort or praise, or
promotion, but is simply determined to do what he believes to be right.
He is a dangerous and uncomfortable enemy, because his body which
you can always conquer gives you so little purchase upon his soul.
Return To India
Gandhi decided to leave South Africa in the summer of 1914, just
before the outbreak of World War I. He and his family first went to
London, where they remained for several months. Finally, they
departed England in December, arriving in Bombay in early January
1915.
Emergence as nationalist leader
For the next three years, Gandhi seemed to hover uncertainly on
the periphery of Indian politics, declining to join any political
agitation, supporting the British war effort, and even recruiting
soldiers for the British Indian Army. At the same time, he did not flinch
from criticizing the British officials for any acts of high-handedness or
from taking up the grievances of the long-suffering peasantry
in Bihar and Gujarat. By February 1919, however, the British had
insisted on pushing through—in the teeth of fierce Indian opposition—
the Rowlatt Acts, which empowered the authorities to imprison
without trial those suspected of sedition. A provoked Gandhi finally
revealed a sense of estrangement from the British Raj and announced
a satyagraha struggle. The result was a virtual political earthquake
that shook the subcontinent in the spring of 1919. The violent
outbreaks that followed—notably the Massacre of Amritsar, which was
the killing by British-led soldiers of nearly 400 Indians who were
gathered in an open space in Amritsar in the Punjab region (now
in Punjab state), and the enactment of martial law—prompted him to
stay his hand. However, within a year he was again in a militant mood,
having in the meantime been irrevocably alienated by British
insensitiveness to Indian feeling on the Punjab tragedy and Muslim
resentment on the peace terms offered to Turkey following World War
I.
By the autumn of 1920, Gandhi was the dominant figure on the
political stage, commanding an influence never before attained by any
political leader in India or perhaps in any other country. He
refashioned the 35-year-old Indian National Congress (Congress
Party) into an effective political instrument of Indian nationalism: from
a three-day Christmas-week picnic of the upper middle class in one of
the principal cities of India, it became a mass organization with its
roots in small towns and villages. Gandhi’s message was simple: it was
not British guns but imperfections of Indians themselves that kept
their country in bondage. His program, the nonviolent noncooperation
movement against the British government, included boycotts not only
of British manufactures but of institutions operated or aided by the
British in India: legislatures, courts, offices, schools. The campaign
electrified the country, broke the spell of fear of foreign rule, and led
to the arrests of thousands of satyagrahis, who defied laws and
cheerfully lined up for prison. In February 1922 the movement seemed
to be on the crest of a rising wave, but, alarmed by a violent outbreak
in Chauri Chaura, a remote village in eastern India, Gandhi decided
to call off mass civil disobedience. That was a blow to many of his
followers, who feared that his self-imposed restraints and scruples
would reduce the nationalist struggle to pious futility. Gandhi himself
was arrested on March 10, 1922, tried for sedition, and sentenced to
six years’ imprisonment. He was released in February 1924, after
undergoing surgery for appendicitis. The political landscape had
changed in his absence. The Congress Party had split into two
factions, one under Chitta Ranjan Das and Motilal Nehru (the father
of Jawaharlal Nehru, India’s first prime minister) favouring the entry
of the party into legislatures and the other under Chakravarti
Rajagopalachari and Vallabhbhai Jhaverbhai Patel opposing it. Worst
of all, the unity between Hindus and Muslims of the heyday of the
noncooperation movement of 1920–22 had dissolved. Gandhi tried to
draw the warring communities out of their suspicion and fanaticism
by reasoning and persuasion. Finally, after a serious outbreak of
communal unrest, he undertook a three-week fast in the autumn of
1924 to arouse the people into following the path of nonviolence. In
December 1924 he was named president of the Congress Party, and
he served for a year.
Return to party leadership
During the mid-1920s Gandhi took little interest in active politics and
was considered a spent force. In 1927, however, the British
government appointed a constitutional reform commission under Sir
John Simon, a prominent English lawyer and politician, that did not
contain a single Indian. When the Congress and other
parties boycotted the commission, the political tempo rose. At the
Congress session (meeting) at Calcutta in December 1928, Gandhi put
forth the crucial resolution demanding dominion status from the
British government within a year under threat of a nationwide
nonviolent campaign for complete independence. Henceforth, Gandhi
was back as the leading voice of the Congress Party. In March 1930
he launched the Salt March, a satyagraha against the British-imposed
tax on salt, which affected the poorest section of the community. One
of the most spectacular and successful campaigns in Gandhi’s
nonviolent war against the British Raj, it resulted in the imprisonment
of more than 60,000 people. A year later, after talks with
the viceroy, Lord Irwin (later Lord Halifax), Gandhi accepted a truce
(the Gandhi-Irwin Pact), called off civil disobedience, and agreed to
attend the Round Table Conference in London as the sole
representative of the Indian National Congress.
The conference, which concentrated on the problem of the Indian
minorities rather than on the transfer of power from the British, was
a great disappointment to the Indian nationalists. Moreover, when
Gandhi returned to India in December 1931, he found his party facing
an all-out offensive from Lord Irwin’s successor as viceroy, Lord
Willingdon, who unleashed the sternest repression in the history of
the nationalist movement. Gandhi was once more imprisoned, and the
government tried to insulate him from the outside world and to destroy
his influence. That was not an easy task. Gandhi soon regained
the initiative. In September 1932, while still a prisoner, he embarked
on a fast to protest against the British government’s decision to
segregate the so-called untouchables (the lowest level of the Indian
caste system) by allotting them separate electorates in the new
constitution. The fast produced an emotional upheaval in the country,
and an alternative electoral arrangement was jointly and speedily
devised by the leaders of the Hindu community and the untouchables
and endorsed by the British government. The fast became the starting
point of a vigorous campaign for the removal of the disabilities of the
untouchables, whom Gandhi referred to as Harijans, or “children of
God.” (That term has fallen out of favour, replaced by Dalit; Scheduled
Castes is the official designation.)
In 1934 Gandhi resigned not only as the leader but also as a member
of the Congress Party. He had come to believe that its leading members
had adopted nonviolence as a political expedient and not as the
fundamental creed it was for him. In place of political activity he then
concentrated on his “constructive programme” of building the nation
“from the bottom up”—educating rural India, which accounted for 85
percent of the population; continuing his fight against untouchability;
promoting hand spinning, weaving, and other cottage industries to
supplement the earnings of the underemployed peasantry; and
evolving a system of education best suited to the needs of the people.
Gandhi himself went to live at Sevagram, a village in central India,
which became the centre of his program of social and economic uplift.
The last phase
With the outbreak of World War II, the nationalist struggle in India
entered its last crucial phase. Gandhi hated fascism and all it stood
for, but he also hated war. The Indian National Congress, on the other
hand, was not committed to pacifism and was prepared to support the
British war effort if Indian self-government was assured. Once more
Gandhi became politically active. The failure of the mission of Sir
Stafford Cripps, a British cabinet minister who went to India in March
1942 with an offer that Gandhi found unacceptable, the British
equivocation on the transfer of power to Indian hands, and the
encouragement given by high British officials to conservative and
communal forces promoting discord between Muslims and Hindus
impelled Gandhi to demand in the summer of 1942 an immediate
British withdrawal from India—what became known as the Quit India
Movement.
In mid-1942 the war against the Axis Powers, particularly Japan, was
in a critical phase, and the British reacted sharply to the campaign.
They imprisoned the entire Congress leadership and set out to crush
the party once and for all. There were violent outbreaks that were
sternly suppressed, and the gulf between Britain and India became
wider than ever before. Gandhi, his wife, and several other top party
leaders (including Nehru) were confined in the Aga Khan Palace (now
the Gandhi National Memorial) in Poona (now Pune). Kasturba died
there in early 1944, shortly before Gandhi and the others were
released.
A new chapter in Indo-British relations opened with the victory of
the Labour Party in Britain 1945. During the next two years, there
were prolonged triangular negotiations between leaders of the
Congress, the Muslim League under Mohammad Ali Jinnah, and the
British government, culminating in the Mountbatten Plan of June 3,
1947, and the formation of the two new dominions of India and
Pakistan in mid-August 1947.
It was one of the greatest disappointments of Gandhi’s life that Indian
freedom was realized without Indian unity. Muslim separatism had
received a great boost while Gandhi and his colleagues were in jail,
and in 1946–47, as the final constitutional arrangements were being
negotiated, the outbreak of communal riots between Hindus and
Muslims unhappily created a climate in which Gandhi’s appeals to
reason and justice, tolerance and trust had little chance. When
partition of the subcontinent was accepted—against his advice—he
threw himself heart and soul into the task of healing the scars of the
communal conflict, toured the riot-torn areas in Bengal and
Bihar, admonished the bigots, consoled the victims, and tried to
rehabilitate the refugees. In the atmosphere of that period, surcharged
with suspicion and hatred, that was a difficult and heartbreaking task.
Gandhi was blamed by partisans of both the communities. When
persuasion failed, he went on a fast. He won at least two spectacular
triumphs: in September 1947 his fasting stopped the rioting in
Calcutta, and in January 1948 he shamed the city of Delhi into a
communal truce. A few days later, on January 30, while he was on his
way to his evening prayer meeting in Delhi, he was shot down by
Nathuram Godse, a young Hindu fanatic.

Detail of the Wall of Remembrance at the Bantayog ng mga

Bayani, showing names from the first batch of Bantayog
Honorees, including that of Ka Pepe Diokno
Jose Diokno
From Wikipedia, the free encyclopedia

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In this Philippine name, the middle name or maternal family Senator of the Philippines
name is Wright and the surname or paternal family name is Diokno.

In office
The Honourable December 30, 1963 – September 23, 1972[1]

Secretary of Justice
Jose W. Diokno

In office
December 31, 1961 – May 19, 1962

President Diosdado Macapagal

Preceded by Alejo Mabanag

Succeeded by Juan Liwag Occupation Public official

Chairman of the Presidential Committee on Human

Rights Website diokno.org

Jose "Pepe" Wright Diokno (February 26, 1922 – February 27, 1987)
In office was a Filipino nationalist. He served as Senator of the
Philippines, Secretary of Justice, founding chair of the Commission on
1986–1987 Human Rights, and founder of the Free Legal Assistance Group.
Diokno is the only person to top both the Philippine Bar
Examination and the board exam for Certified Public
Personal details Accountants (CPA). His career was dedicated to the promotion
of human rights, the defense of Philippine sovereignty, and the
enactment pro-Filipino economic legislation.
Born February 26, 1922
In 2004, Diokno was posthumously conferred the Order of
Manila, Philippine Islands Lakandula with the rank of Supremo—the Philippines' highest
honor.[2] February 27 is celebrated in the country as Jose W. Diokno
Day.[3]
Died February 27, 1987 (aged 65)

Quezon City, Metro

Early life and education[edit]
Manila, Philippines
Jose W. Diokno was born in Manila on Feb. 26, 1922, to Ramon
Diokno, a former senator and Justice of the Supreme Court, and
Nationality Filipino Leonor Wright, an American mestiza of British descent. His
grandfather was Ananias Diokno, a general in the Philippine
Revolution and the Philippine-American War.

Political party Nacionalista Party In 1937, Diokno graduated as valedictorian of his high school class
at De La Salle College, Manila, and went on to study commerce, also
at De La Salle University. he graduated from college summa cum
laude at age 17. Diokno took the CPA board examinations—for which
Spouse(s) Carmen Reyes Icasiano-Diokno he had to secure special dispensation, since he was too young.[4]
After Diokno enrolled in law at the University of Santo Tomas, his
studies were interrupted by the outbreak of World War II. During the
Alma mater De La Salle University
war, Diokno continued his education by reading his father's law
University of Santo Tomas books. When the war was over, he was granted a special dispensation
by the Supreme Court of the Philippines and allowed to take
the Philippine Bar Examination despite having never completed a law
degree.[4]
Secretary of Justice[edit]
See also: Stonehill investigation
Immediately after passing the Bar, Diokno embarked on his law
practice, handling and winning high-profile cases, such as
successfully battling libel charges against Manila Mayor Arsenio
Lacson, and winning an election case on behalf of his father, Ramon.
With his reputation as a legal practitioner, in 1961, Diokno was
appointed Secretary of Justice by President Diosdado Macapagal.
In March 1962, Diokno ordered a raid on a firm owned by Harry S.
Stonehill, an American businessman who was suspected of tax
evasion and bribing public officials, among other crimes. Diokno's
investigation of Stonehill further revealed corruption within
government ranks, and as Secretary of Justice, he prepared to
prosecute those involved. However, President Macapagal intervened,
accepting a deal that absolved Stonehill in exchange for his
deportation, then ordering Diokno to resign. Diokno questioned
Macapagal's actions, saying, "How can the government now prosecute
the corrupted when it has allowed the corrupter to go?"[5]
Senator[edit]
Months later, Diokno ran for senator under the Nacionalista Party in
the 1963 elections, and won.
Senator Diokno became chairman of the Senate Economic Affairs
Committee, and worked for the passage of pro-Filipino legislation,
including what is considered to be the most important incentive law
in the country, RA 5186, also known as the Investment Incentives Act
of 1967, which provides incentives to Filipino investors and
entrepreneurs in order to place control of the Philippine economy in
the hands of Filipinos. It also led to the foundation of the Board of
Investments, the premier government agency responsible for
propagating investments in the Philippines.
Diokno then authored RA 6173 or the Oil Industry Commission Act of
1971, which created the Oil Industry Commission (OIC) to regulate oil
pricing from different companies. He also authored Joint Resolution
No. 2, which set the policies for economic development and social
progress. In addition to that, he sponsored and co-authored the Export
Incentives Act of 1970 and the Revised Election Law, among many
others.
For his performance as legislator, Diokno was named Outstanding
Senator by the Philippines Free Press from 1967 to 1970, making him
the only legislator to receive the recognition for four successive years.
Martial law[edit]
In the early 1970s, Diokno sensed a shift in the Marcos presidency
toward authoritarianism. Diokno and Ferdinand Marcos were
members of the Nacionalista Party, but when Marcos suspended the
privilege of the writ of habeas corpus, Diokno resigned from the party
in protest and took to the streets.[4]
Following the Jabidah massacre, where alleged 14 Muslim youths
were gunned down in Corregidor by unknown armed men, Diokno
called on the administration to respect its citizens, saying in an oft-
quoted speech, "No cause is more worthy than the cause of human
rights... they are what makes a man human. Deny them and you deny
man's humanity."[6]
He was a leading figure in the formation of the Movement of Concerned
Citizens for Civil Liberties, which organized series of protest rallies
which it organized from 1871-72.[7] The most massive of these rallies
was held on 21 September 1972, shortly before the imposition of
Martial Law by the Marcos dictatorship.[7]
Diokno's second term as senator was cut short on September 21,
1972, when Marcos declared martial law. Shortly after the declaration,
Diokno was arrested by the dictatorship. Six carloads of armed
soldiers visited Diokno at his home to "invite" him for questioning.
They had no warrant.[4] Diokno was then brought to Camp Crame, and
later, Fort Bonifacio, where he was detained along with Ninoy
Aquino and Chino Roces. Diokno and Aquino, whom the dictatorship
considered their foremost opponents, were later transferred to solitary
confinement in Laur, Nueva Ecija.
Diokno spent nearly two years in detention. No charge was ever filed
against him. Diokno was released arbitrarily on September 11, 1974—
Marcos's 57th birthday.
Human rights work[edit]
Immediately after his release, Diokno set up the Free Legal Assistance
Group in 1974, which gave free legal services to the victims of martial
law. It was the first and largest association of human rights attorneys
ever assembled in the nation. In court, Diokno personally defended
tribal groups, peasants, social workers threatened by exploitation and
military atrocities. He was also involved in documenting cases of
torture, summary execution, and disappearances under the Marcos
regime.[4]
Diokno had no fear of being arrested again, and went around and
outside the Philippines, spreading a message of hope and democracy.
In another oft-quoted speech, he once quipped:
And so law in the land died. I grieve for it but I do not despair over it.
I know, with a certainty no argument can turn, no wind can shake,
that from its dust will rise a new and better law: more just, more
human, and more humane. When that will happen, I know not. That
it will happen, I know.[6]
People Power[edit]
After the 1986 People Power Revolution, Diokno was appointed by
President Corazon Aquino as founding chairman of the Presidential
Committee on Human Rights, and tasked to lead a government panel
to negotiate for the return of rebel forces to the government folds.
Diokno would be disappointed, however, by the Mendiola massacre of
January 22, 1987, where 15 farmers staging a peaceful rally in
Mendiola were gunned down by the military under Aquino. Diokno
resigned from his two government posts in deep disgust and great
sadness. His daughter Maris noted that "It was the only time we saw
him near tears."[4]
Death and legacy[edit]
In 1984, even before People Power, Diokno had been diagnosed with
terminal lung cancer. He had smoked all his adult life. Diokno
continued to work, despite his illness, until his death on Feb. 27,
1987—one day after his 65th birthday.
Following Diokno's death, President Cory Aquino declared March 2–
12, 1987 as a period of national mourning. Expressing her grief,
Aquino said, "Pepe braved the Marcos dictatorship with a dignified and
eloquent courage our country will long remember."[8] She quoted what
her husband Ninoy would often tell his friends that he was "the one
man he would unquestioningly follow to the ends of the earth."
In 2004, Diokno was posthumously conferred the Order of
Lakandula with the rank of Supremo—the Philippines' highest
honor.[2] February 27 is celebrated in the country as Jose W. Diokno
Day.[3]
In 2005, the first ever "Ka Pepe Diokno Champion of Human Rights"
award was given to Voltaire Y. Rosales, Executive Judge of Tanauan,
Batangas for his effort in protecting the downtrodden. Subsequent
annual awards have been given to worthy candidates who, in their life
and death, fulfilled the values of protecting human rights just as
Senator Diokno.[9]
In 2007, by virtue of Republic Act No. 9468, Bay Boulevard, a 4.38
kilometer road in Pasay and Parañaque cities was renamed Jose
Diokno Boulevard in his honor and memory. In 2017, the Commission
on Human Rights erected a 9- foot statue of Diokno in the CHR
compound in Quezon City and the park surrounding it was named the
Diokno Freedom Park.
Personal life and descendants[edit]
Sen. Diokno was married to Carmen Reyes Icasiano-Diokno, with
whom he had ten (10) children: Carmen Leonor, Jose Ramon, Maria
de la Paz, Maria Serena, Maria Teresa, Maria Socorro, Jose Miguel,
Jose Manuel, Maria Victoria and Martin Jose.
Maria Serena, or "Maris", a historian, is the former chair of
the National Historical Commission of the Philippines, and former Vice
President for Academic Affairs of the University of the Philippines.
Jose Manuel, or "Chel", is a human rights lawyer, Chairman of
the Free Legal Assistance Group, Founding Dean of the De La Salle
University College of Law, and former Special Counsel of the Senate
Blue Ribbon Committee.
His grandson Jose Lorenzo "Pepe" Diokno is the executive director of
alternative education group Rock Ed Philippines[10] and is best known
a motion picture director, producer and screenwriter whose debut
film, Engkwentro won the Venice Film Festival’s Lion of the Future
Award in 2009, as well as Venice’s Orizzonti Prize, the NETPAC Award
for Best Asian Film, and the Gawad Urian for Best Editing.[11][12]
Publications[edit]
A Nation for Our Children, a collection of Jose W. Diokno’s essays and
speeches on human rights, nationalism, and Philippine sovereignty,
was published in 1987 by the Diokno Foundation. The collection is
named after Diokno's popular speech, in which he says,
There is one dream that all Filipinos share: that our children may have
a better life than we have had. So there is one vision that is distinctly
Filipino: the vision to make this country, our country, a nation for our
children.[6]
Several parts of the book are now accessible online, at The Diokno
Foundation
Famous quotes[edit]
 "No cause is more worthy than the cause of human rights... they
are what makes a man human. Deny them and you deny man's
humanity."
 "There is one dream that we all Filipinos share: that our children
may have a better life than we have had. To make this country,
our country, a nation for our children."
 "Law in the land died. I grieve for it but I do not despair over it. I
know, with a certainty no argument can turn, no wind can shake,
that from its dust will rise a new and better law: more just, more
human, and more humane. When that will happen, I know not.
That it will happen, I know."
 "We are one nation with one future, a future that will be as bright
or as dark as we remain united or divided."
 "Authoritarianism does not let people decide; its basic premise is
that people do not know how to decide. It promotes repression
that prevents meaningful change, and preserves the structure of
power and privilege."
 "Yes-men are not compatible with democracy. We can strengthen
our leaders by pointing out what they are doing that is wrong."
 "The point is not to make a perfect world, just a better one – and
that is difficult enough."
 "Do not forget: We Filipinos are the first Asian people who revolted
against a western imperial power, Spain; the first who adopted a
democratic republican constitution in Asia, the Malolos
Constitution; the first to fight the first major war of the twentieth
century against another western imperial power, the United
States of America. There is no insurmountable barrier that could
stop us from becoming what we want to be."
 "All of us are Filipinos not only because we are brothers in blood,
but because we are all brothers in tears; not because we all share
the same land, but because we share the same dream."
 "Reality is often much more beautiful than anything that we can
conceive of. If we can release the creative energy of our people,
then we will have a nation full of hope and full of joy, full of life
and full of love — a nation that may not be a nation for our
children but which will be a nation of our children."
Resolution March 18, 1954
In the Matter of the Petitions for Admission to the Bar of
Unsuccessful Candidates of 1946 to 1953;
ALBINO CUNANAN, ET AL., petitioners.
Jose M. Aruego, M.H. de Joya, Miguel R. Cornejo, and Antonio Enrile
Inton for petitioners.
Office of the Solicitor General Juan R. Liwag for respondent.
DIOKNO, J.:
In recent years few controversial issues have aroused so much public
interest and concern as Republic Act No. 972, popularly known as the
"Bar Flunkers' Act of 1953." Under the Rules of Court governing
admission to the bar, "in order that a candidate (for admission to the
Bar) may be deemed to have passed his examinations successfully, he
must have obtained a general average of 75 per cent in all subjects,
without falling below 50 per cent in any subject." (Rule 127, sec. 14,
Rules of Court). Nevertheless, considering the varying difficulties of
the different bar examinations held since 1946 and the varying degree
of strictness with which the examination papers were graded, this
court passed and admitted to the bar those candidates who had
obtained an average of only 72 per cent in 1946, 69 per cent in 1947,
70 per cent in 1948, and 74 per cent in 1949. In 1950 to 1953, the 74
per cent was raised to 75 per cent.
Believing themselves as fully qualified to practice law as those
reconsidered and passed by this court, and feeling conscious of having
been discriminated against (See Explanatory Note to R.A. No. 972),
unsuccessful candidates who obtained averages of a few percentage
lower than those admitted to the Bar agitated in Congress for, and
secured in 1951 the passage of Senate Bill No. 12 which, among
others, reduced the passing general average in bar examinations to 70
per cent effective since 1946. The President requested the views of this
court on the bill. Complying with that request, seven members of the fourth, nineteen hundred and forty-six shall be deemed to
court subscribed to and submitted written comments adverse thereto, have passed in such subject or subjects and such grade or
and shortly thereafter the President vetoed it. Congress did not grades shall be included in computing the passing general
override the veto. Instead, it approved Senate Bill No. 371, embodying average that said candidate may obtain in any subsequent
substantially the provisions of the vetoed bill. Although the members examinations that he may take.
of this court reiterated their unfavorable views on the matter, the
President allowed the bill to become a law on June 21, 1953 without SEC. 3. This Act shall take effect upon its approval.
his signature. The law, which incidentally was enacted in an election
year, reads in full as follows:
Enacted on June 21, 1953, without the Executive approval.
REPUBLIC ACT NO. 972
After its approval, many of the unsuccessful postwar candidates filed
petitions for admission to the bar invoking its provisions, while others
AN ACT TO FIX THE PASSING MARKS FOR BAR whose motions for the revision of their examination papers were still
EXAMINATIONS FROM NINETEEN HUNDRED AND pending also invoked the aforesaid law as an additional ground for
FORTY-SIX UP TO AND INCLUDING NINETEEN admission. There are also others who have sought simply the
HUNDRED AND FIFTY-FIVE. reconsideration of their grades without, however, invoking the law in
question. To avoid injustice to individual petitioners, the court first
Be it enacted by the Senate and House of reviewed the motions for reconsideration, irrespective of whether or
Representatives of the Philippines in Congress not they had invoked Republic Act No. 972. Unfortunately, the court
assembled: has found no reason to revise their grades. If they are to be admitted
to the bar, it must be pursuant to Republic Act No. 972 which, if
SECTION 1. Notwithstanding the provisions of section declared valid, should be applied equally to all concerned whether they
fourteen, Rule numbered one hundred twenty-seven of the have filed petitions or not. A complete list of the petitioners, properly
Rules of Court, any bar candidate who obtained a general classified, affected by this decision, as well as a more detailed account
average of seventy per cent in any bar examinations after July of the history of Republic Act No. 972, are appended to this decision
fourth, nineteen hundred and forty-six up to the August as Annexes I and II. And to realize more readily the effects of the law,
nineteen hundred and fifty-one bar examinations; seventy- the following statistical data are set forth:
one per cent in the nineteen hundred and fifty-two bar
examinations; seventy-two per cent in the in the nineteen (1) The unsuccessful bar candidates who are to be benefited by section
hundred and fifty-three bar examinations; seventy-three per 1 of Republic Act No. 972 total 1,168, classified as follows:
cent in the nineteen hundred and fifty-four bar examinations;
seventy-four per cent in the nineteen hundred and fifty-five
1946 (August) 206 121 18
bar examinations without a candidate obtaining a grade below
fifty per cent in any subject, shall be allowed to take and 1946 (November) 477 228 43
subscribe the corresponding oath of office as member of the 1947 749 340 0
Philippine Bar: Provided, however, That for the purpose of this
Act, any exact one-half or more of a fraction, shall be 1948 899 409 11
considered as one and included as part of the next whole 1949 1,218 532 164
number.
1950 1,316 893 26
SEC. 2. Any bar candidate who obtained a grade of seventy- 1951 2,068 879 196
five per cent in any subject in any bar examination after July 1952 2,738 1,033 426
 1953 2,555 968 284
TOTAL 12,230 5,421 1,168
Of the total 1,168 candidates, 92 have passed in subsequent
examination, and only 586 have filed either motions for admission to
the bar pursuant to said Republic Act, or mere motions for
reconsideration.
(2) In addition, some other 10 unsuccessful candidates are to be
benefited by section 2 of said Republic Act. These candidates had each
taken from two to five different examinations, but failed to obtain a
passing average in any of them. Consolidating, however, their highest
grades in different subjects in previous examinations, with their latest
marks, they would be sufficient to reach the passing average as
provided for by Republic Act No. 972.
(3) The total number of candidates to be benefited by this Republic
Acts is therefore 1,094, of which only 604 have filed petitions. Of these
604 petitioners, 33 who failed in 1946 to 1951 had individually
presented motions for reconsideration which were denied, while 125
unsuccessful candidates of 1952, and 56 of 1953, had presented
similar motions, which are still pending because they could be
favorably affected by Republic Act No. 972, — although as has been
already stated, this tribunal finds no sufficient reasons to reconsider
their grades
UNCONSTITUTIONALITY OF REPUBLIC ACT NO. 972
Having been called upon to enforce a law of far-reaching effects on the
practice of the legal profession and the administration of justice, and
because some doubts have been expressed as to its validity, the court
set the hearing of the afore-mentioned petitions for admission on the
sole question of whether or not Republic Act No. 972 is constitutional.
We have been enlightened in the study of this question by the brilliant
assistance of the members of the bar who have amply argued, orally
an in writing, on the various aspects in which the question may be
gleaned. The valuable studies of Messrs. E. Voltaire Garcia, Vicente J.
Francisco, Vicente Pelaez and Buenaventura Evangelista, in favor of
the validity of the law, and of the U.P. Women's Lawyers' Circle, the
Solicitor General, Messrs. Arturo A. Alafriz, Enrique M. Fernando,
Vicente Abad Santos, Carlos A. Barrios, Vicente del Rosario, Juan de
Blancaflor, Mamerto V. Gonzales, and Roman Ozaeta against it, aside
from the memoranda of counsel for petitioners, Messrs. Jose M.
Aruego, M.H. de Joya, Miguel R. Cornejo and Antonio Enrile Inton,
and of petitioners Cabrera, Macasaet and Galema themselves, has
greatly helped us in this task. The legal researchers of the court have
exhausted almost all Philippine and American jurisprudence on the
matter. The question has been the object of intense deliberation for a
long time by the Tribunal, and finally, after the voting, the preparation
of the majority opinion was assigned to a new member in order to place
it as humanly as possible above all suspicion of prejudice or partiality.
Republic Act No. 972 has for its object, according to its author, to
admit to the Bar, those candidates who suffered from insufficiency of
reading materials and inadequate preparation. Quoting a portion of
the Explanatory Note of the proposed bill, its author Honorable
Senator Pablo Angeles David stated:
The reason for relaxing the standard 75 per cent passing
grade is the tremendous handicap which students during the
years immediately after the Japanese occupation has to
overcome such as the insufficiency of reading materials and
the inadequacy of the preparation of students who took up
law soon after the liberation.
Of the 9,675 candidates who took the examinations from 1946 to
1952, 5,236 passed. And now it is claimed that in addition 604
candidates be admitted (which in reality total 1,094), because they
suffered from "insufficiency of reading materials" and of "inadequacy
of preparation."
By its declared objective, the law is contrary to public interest because
it qualifies 1,094 law graduates who confessedly had inadequate
preparation for the practice of the profession, as was exactly found by
this Tribunal in the aforesaid examinations. The public interest
demands of legal profession adequate preparation and efficiency,
precisely more so as legal problem evolved by the times become more
difficult. An adequate legal preparation is one of the vital requisites for
the practice of law that should be developed constantly and
maintained firmly. To the legal profession is entrusted the protection
of property, life, honor and civil liberties. To approve officially of those
inadequately prepared individuals to dedicate themselves to such a
delicate mission is to create a serious social danger. Moreover, the
statement that there was an insufficiency of legal reading materials is
grossly exaggerated. There were abundant materials. Decisions of this
court alone in mimeographed copies were made available to the public
during those years and private enterprises had also published them
in monthly magazines and annual digests. The Official Gazette had
been published continuously. Books and magazines published abroad
have entered without restriction since 1945. Many law books, some
even with revised and enlarged editions have been printed locally
during those periods. A new set of Philippine Reports began to be
published since 1946, which continued to be supplemented by the
addition of new volumes. Those are facts of public knowledge.
Notwithstanding all these, if the law in question is valid, it has to be
enforced.
The question is not new in its fundamental aspect or from the point of
view of applicable principles, but the resolution of the question would
have been easier had an identical case of similar background been
picked out from the jurisprudence we daily consult. Is there any
precedent in the long Anglo-Saxon legal history, from which has been
directly derived the judicial system established here with its lofty
ideals by the Congress of the United States, and which we have
preserved and attempted to improve, or in our contemporaneous
judicial history of more than half a century? From the citations of
those defending the law, we can not find a case in which the validity
of a similar law had been sustained, while those against its validity
cite, among others, the cases of Day (In re Day, 54 NE 646), of Cannon
(State vs. Cannon, 240 NW, 441), the opinion of the Supreme Court of
Massachusetts in 1932 (81 ALR 1061), of Guariña (24 Phil., 37), aside
from the opinion of the President which is expressed in his vote of the
original bill and which the postponement of the contested law
respects.
This law has no precedent in its favor. When similar laws in other
countries had been promulgated, the judiciary immediately declared
them without force or effect. It is not within our power to offer a
precedent to uphold the disputed law.
To be exact, we ought to state here that we have examined carefully
the case that has been cited to us as a favorable precedent of the law
— that of Cooper (22 NY, 81), where the Court of Appeals of New York
revoked the decision of the Supreme court of that State, denying the
petition of Cooper to be admitted to the practice of law under the
provisions of a statute concerning the school of law of Columbia
College promulgated on April 7, 1860, which was declared by the
Court of Appeals to be consistent with the Constitution of the state of
New York.
It appears that the Constitution of New York at that time provided:
They (i.e., the judges) shall not hold any other office of public
trust. All votes for either of them for any elective office except
that of the Court of Appeals, given by the Legislature or the
people, shall be void. They shall not exercise any power of
appointment to public office. Any male citizen of the age of
twenty-one years, of good moral character, and who possesses
the requisite qualifications of learning and ability, shall be
entitled to admission to practice in all the courts of this State.
(p. 93).
According to the Court of Appeals, the object of the constitutional
precept is as follows:
Attorneys, solicitors, etc., were public officers; the power of
appointing them had previously rested with the judges, and
this was the principal appointing power which they possessed.
The convention was evidently dissatisfied with the manner in
which this power had been exercised, and with the restrictions
which the judges had imposed upon admission to practice
before them. The prohibitory clause in the section quoted was
aimed directly at this power, and the insertion of the
provision" expecting the admission of attorneys, in this
particular section of the Constitution, evidently arose from its
connection with the object of this prohibitory clause. There is
nothing indicative of confidence in the courts or of a
disposition to preserve any portion of their power over this
subject, unless the Supreme Court is right in the inference it
draws from the use of the word `admission' in the action
referred to. It is urged that the admission spoken of must be
by the court; that to admit means to grant leave, and that the
power of granting necessarily implies the power of refusing,
and of course the right of determining whether the applicant
 possesses the requisite qualifications to entitle him to
admission.
These positions may all be conceded, without affecting the
validity of the act. (p. 93.)
Now, with respect to the law of April 7, 1860, the decision seems to
indicate that it provided that the possession of a diploma of the school
of law of Columbia College conferring the degree of Bachelor of Laws
was evidence of the legal qualifications that the constitution required
of applicants for admission to the Bar. The decision does not however
quote the text of the law, which we cannot find in any public or
accessible private library in the country.
In the case of Cooper, supra, to make the law consistent with the
Constitution of New York, the Court of Appeals said of the object of the
law:
The motive for passing the act in question is apparent.
Columbia College being an institution of established
reputation, and having a law department under the charge of
able professors, the students in which department were not
only subjected to a formal examination by the law committee
of the institution, but to a certain definite period of study
before being entitled to a diploma of being graduates, the
Legislature evidently, and no doubt justly, considered this
examination, together with the preliminary study required by
the act, as fully equivalent as a test of legal requirements, to
the ordinary examination by the court; and as rendering the
latter examination, to which no definite period of preliminary
study was essential, unnecessary and burdensome.
The act was obviously passed with reference to the learning
and ability of the applicant, and for the mere purpose of
substituting the examination by the law committee of the
college for that of the court. It could have had no other object,
and hence no greater scope should be given to its provisions.
We cannot suppose that the Legislature designed entirely to
dispense with the plain and explicit requirements of the
Constitution; and the act contains nothing whatever to
indicate an intention that the authorities of the college should
inquire as to the age, citizenship, etc., of the students before
granting a diploma. The only rational interpretation of which
the act admits is, that it was intended to make the college
diploma competent evidence as to the legal attainments of the
applicant, and nothing else. To this extent alone it operates as
a modification of pre-existing statutes, and it is to be read in
connection with these statutes and with the Constitution itself
in order to determine the present condition of the law on the
subject. (p.89)
xxx xxx xxx
The Legislature has not taken from the court its jurisdiction
over the question of admission, that has simply prescribed
what shall be competent evidence in certain cases upon that
question. (p.93)
From the foregoing, the complete inapplicability of the case of Cooper
with that at bar may be clearly seen. Please note only the following
distinctions:
(1) The law of New York does not require that any candidate of
Columbia College who failed in the bar examinations be admitted to
the practice of law.
(2) The law of New York according to the very decision of Cooper, has
not taken from the court its jurisdiction over the question of admission
of attorney at law; in effect, it does not decree the admission of any
lawyer.
(3) The Constitution of New York at that time and that of the
Philippines are entirely different on the matter of admission of the
practice of law.
In the judicial system from which ours has been evolved, the
admission, suspension, disbarment and reinstatement of attorneys at
law in the practice of the profession and their supervision have been
disputably a judicial function and responsibility. Because of this
attribute, its continuous and zealous possession and exercise by the
judicial power have been demonstrated during more than six
centuries, which certainly "constitutes the most solid of titles." Even
considering the power granted to Congress by our Constitution to
repeal, alter supplement the rules promulgated by this Court
regarding the admission to the practice of law, to our judgment and
proposition that the admission, suspension, disbarment and
reinstatement of the attorneys at law is a legislative function, properly
belonging to Congress, is unacceptable. The function requires (1)
previously established rules and principles, (2) concrete facts, whether
past or present, affecting determinate individuals. and (3) decision as
to whether these facts are governed by the rules and principles; in
effect, a judicial function of the highest degree. And it becomes more
undisputably judicial, and not legislative, if previous judicial
resolutions on the petitions of these same individuals are attempted
to be revoked or modified.
We have said that in the judicial system from which ours has been
derived, the act of admitting, suspending, disbarring and reinstating
attorneys at law in the practice of the profession is concededly judicial.
A comprehensive and conscientious study of this matter had been
undertaken in the case of State vs. Cannon (1932) 240 NW 441, in
which the validity of a legislative enactment providing that Cannon be
permitted to practice before the courts was discussed. From the text
of this decision we quote the following paragraphs:
This statute presents an assertion of legislative power without
parallel in the history of the English speaking people so far as
we have been able to ascertain. There has been much
uncertainty as to the extent of the power of the Legislature to
prescribe the ultimate qualifications of attorney at law has
been expressly committed to the courts, and the act of
admission has always been regarded as a judicial function.
This act purports to constitute Mr. Cannon an attorney at law,
and in this respect it stands alone as an assertion of legislative
power. (p. 444)
Under the Constitution all legislative power is vested in a
Senate and Assembly. (Section 1, art. 4.) In so far as the
prescribing of qualifications for admission to the bar are
legislative in character, the Legislature is acting within its
constitutional authority when it sets up and prescribes such
qualifications. (p. 444)
But when the Legislature has prescribed those qualifications
which in its judgment will serve the purpose of legitimate
legislative solicitude, is the power of the court to impose other
and further exactions and qualifications foreclosed or
exhausted? (p. 444)
Under our Constitution the judicial and legislative
departments are distinct, independent, and coordinate
branches of the government. Neither branch enjoys all the
powers of sovereignty which properly belongs to its
department. Neither department should so act as to
embarrass the other in the discharge of its respective
functions. That was the scheme and thought of the people
setting upon the form of government under which we exist.
State vs. Hastings, 10 Wis., 525; Attorney General ex rel.
Bashford vs. Barstow, 4 Wis., 567. (p. 445)
The judicial department of government is responsible for the
plane upon which the administration of justice is maintained.
Its responsibility in this respect is exclusive. By committing a
portion of the powers of sovereignty to the judicial department
of our state government, under 42a scheme which it was
supposed rendered it immune from embarrassment or
interference by any other department of government, the
courts cannot escape responsibility fir the manner in which
the powers of sovereignty thus committed to the judicial
department are exercised. (p. 445)
The relation at the bar to the courts is a peculiar and intimate
relationship. The bar is an attache of the courts. The quality
of justice dispense by the courts depends in no small degree
upon the integrity of its bar. An unfaithful bar may easily
bring scandal and reproach to the administration of justice
and bring the courts themselves into disrepute. (p.445)
Through all time courts have exercised a direct and severe
supervision over their bars, at least in the English speaking
countries. (p. 445)
After explaining the history of the case, the Court ends thus:
Our conclusion may be epitomized as follows: For more than
six centuries prior to the adoption of our Constitution, the
courts of England, concededly subordinate to Parliament
since the Revolution of 1688, had exercise the right of
determining who should be admitted to the practice of law,
which, as was said in Matter of the Sergeant's at Law, 6
Bingham's New Cases 235, "constitutes the most solid of all
titles." If the courts and judicial power be regarded as an
entity, the power to determine who should be admitted to
practice law is a constituent element of that entity. It may be
difficult to isolate that element and say with assurance that it
is either a part of the inherent power of the court, or an
essential element of the judicial power exercised by the court,
but that it is a power belonging to the judicial entity and made
of not only a sovereign institution, but made of it a separate
independent, and coordinate branch of the government. They
took this institution along with the power traditionally
exercise to determine who should constitute its attorney at
law. There is no express provision in the Constitution which
indicates an intent that this traditional power of the judicial
department should in any manner be subject to legislative
control. Perhaps the dominant thought of the framers of our
constitution was to make the three great departments of
government separate and independent of one another. The
idea that the Legislature might embarrass the judicial
department by prescribing inadequate qualifications for
attorneys at law is inconsistent with the dominant purpose of
making the judicial independent of the legislative department,
and such a purpose should not be inferred in the absence of
express constitutional provisions. While the legislature may
legislate with respect to the qualifications of attorneys, but is
incidental merely to its general and unquestioned power to
protect the public interest. When it does legislate a fixing a
standard of qualifications required of attorneys at law in order
that public interests may be protected, such qualifications do
not constitute only a minimum standard and limit the class
from which the court must make its selection. Such legislative
qualifications do not constitute the ultimate qualifications
beyond which the court cannot go in fixing additional
qualifications deemed necessary by the course of the proper
administration of judicial functions. There is no legislative
power to compel courts to admit to their bars persons deemed
by them unfit to exercise the prerogatives of an attorney at
law. (p. 450)
Furthermore, it is an unlawful attempt to exercise the power
of appointment. It is quite likely true that the legislature may
exercise the power of appointment when it is in pursuance of
a legislative functions. However, the authorities are well-nigh
unanimous that the power to admit attorneys to the practice
of law is a judicial function. In all of the states, except New
Jersey (In re Reisch, 83 N.J. Eq. 82, 90 A. 12), so far as our
investigation reveals, attorneys receive their formal license to
practice law by their admission as members of the bar of the
court so admitting. Cor. Jur. 572; Ex parte Secombre, 19
How. 9,15 L. Ed. 565; Ex parte Garland, 4 Wall. 333, 18 L. Ed.
366; Randall vs. Brigham, 7 Wall. 53, 19 L. Ed. 285;
Hanson vs. Grattan, 48 Kan, 843, 115 P. 646, 34 L.R.A. 519;
Danforth vs. Egan, 23 S. D. 43, 119 N.W. 1021, 130 Am. St.
Rep. 1030, 20 Ann. Cas. 413.
The power of admitting an attorney to practice having been
perpetually exercised by the courts, it having been so
generally held that the act of the court in admitting an
attorney to practice is the judgment of the court, and an
attempt as this on the part of the Legislature to confer such
right upon any one being most exceedingly uncommon, it
seems clear that the licensing of an attorney is and always has
been a purely judicial function, no matter where the power to
determine the qualifications may reside. (p. 451)
In that same year of 1932, the Supreme Court of Massachusetts, in
answering a consultation of the Senate of that State, 180 NE 725, said:
It is indispensible to the administration of justice and to
interpretation of the laws that there be members of the bar of
sufficient ability, adequate learning and sound moral
character. This arises from the need of enlightened assistance
to the honest, and restraining authority over the knavish,
litigant. It is highly important, also that the public be
protected from incompetent and vicious practitioners, whose
opportunity for doing mischief is wide. It was said by Cardoz,
C.L., in People ex rel. Karlin vs. Culkin, 242 N.Y. 456, 470,
471, 162 N.E. 487, 489, 60 A.L.R. 851: "Membership in the
bar is a privilege burden with conditions." One is admitted to
the bar "for something more than private gain." He becomes
an "officer of the court", and ,like the court itself, an
instrument or agency to advance the end of justice. His
cooperation with the court is due "whenever justice would be
imperiled if cooperation was withheld." Without such
 attorneys at law the judicial department of government would
be hampered in the performance of its duties. That has been
the history of attorneys under the common law, both in this
country and England. Admission to practice as an attorney at
law is almost without exception conceded to be a judicial
function. Petition to that end is filed in courts, as are other
proceedings invoking judicial action. Admission to the bar is
accomplish and made open and notorious by a decision of the
court entered upon its records. The establishment by the
Constitution of the judicial department conferred authority
necessary to the exercise of its powers as a coordinate
department of government. It is an inherent power of such a
department of government ultimately to determine the
qualifications of those to be admitted to practice in its courts,
for assisting in its work, and to protect itself in this respect
from the unfit, those lacking in sufficient learning, and those
not possessing good moral character. Chief Justice Taney
stated succinctly and with finality in Ex parte Secombe, 19
How. 9, 13, 15 L. Ed. 565, "It has been well settled, by the
rules and practice of common-law courts, that it rests
exclusively with the court to determine who is qualified to
become one of its officers, as an attorney and counselor, and
for what cause he ought to be removed." (p.727)
In the case of Day and others who collectively filed a petition to secure
license to practice the legal profession by virtue of a law of state (In
re Day, 54 NE 646), the court said in part:
In the case of Ex parte Garland, 4 Wall, 333, 18 L. Ed. 366,
the court, holding the test oath for attorneys to be
unconstitutional, explained the nature of the attorney's office
as follows: "They are officers of the court, admitted as such by
its order, upon evidence of their possessing sufficient legal
learning and fair private character. It has always been the
general practice in this country to obtain this evidence by an
examination of the parties. In this court the fact of the
admission of such officers in the highest court of the states to
which they, respectively, belong for, three years preceding
their application, is regarded as sufficient evidence of the
possession of the requisite legal learning, and the statement
of counsel moving their admission sufficient evidence that
their private and professional character is fair. The order of
admission is the judgment of the court that the parties
possess the requisite qualifications as attorneys and
counselors, and are entitled to appear as such and conduct
causes therein. From its entry the parties become officers of
the court, and are responsible to it for professional
misconduct. They hold their office during good behavior, and
can only be deprived of it for misconduct ascertained and
declared by the judgment of the court after opportunity to be
heard has been afforded. Ex parte Hoyfron, admission or their
exclusion is not the exercise of a mere ministerial power. It is
the exercise of judicial power, and has been so held in
numerous cases. It was so held by the court of appeals of New
York in the matter of the application of Cooper for admission.
Re Cooper 22 N. Y. 81. "Attorneys and Counselors", said that
court, "are not only officers of the court, but officers whose
duties relate almost exclusively to proceedings of a judicial
nature; and hence their appointment may, with propriety, be
entrusted to the court, and the latter, in performing his duty,
may very justly considered as engaged in the exercise of their
appropriate judicial functions." (pp. 650-651).
We quote from other cases, the following pertinent portions:
Admission to practice of law is almost without exception
conceded everywhere to be the exercise of a judicial function,
and this opinion need not be burdened with citations in this
point. Admission to practice have also been held to be the
exercise of one of the inherent powers of the court. — Re
Bruen, 102 Wash. 472, 172 Pac. 906.
Admission to the practice of law is the exercise of a judicial
function, and is an inherent power of the court. — A.C.
Brydonjack, vs. State Bar of California, 281 Pac. 1018; See
Annotation on Power of Legislature respecting admission to
bar, 65, A.L. R. 1512.
On this matter there is certainly a clear distinction between the
functions of the judicial and legislative departments of the
government.
The distinction between the functions of the legislative and
the judicial departments is that it is the province of the
legislature to establish rules that shall regulate and govern in
 matters of transactions occurring subsequent to the
legislative action, while the judiciary determines rights and
obligations with reference to transactions that are past or
conditions that exist at the time of the exercise of judicial
power, and the distinction is a vital one and not subject to
alteration or change either by legislative action or by judicial
decree.
The judiciary cannot consent that its province shall be
invaded by either of the other departments of the government.
— 16 C.J.S., Constitutional Law, p. 229.
If the legislature cannot thus indirectly control the action of
the courts by requiring of them construction of the law
according to its own views, it is very plain it cannot do so
directly, by settling aside their judgments, compelling them to
grant new trials, ordering the discharge of offenders, or
directing what particular steps shall be taken in the progress
of a judicial inquiry. — Cooley's Constitutional Limitations,
192.
In decreeing the bar candidates who obtained in the bar examinations
of 1946 to 1952, a general average of 70 per cent without falling below
50 per cent in any subject, be admitted in mass to the practice of law,
the disputed law is not a legislation; it is a judgment — a judgment
revoking those promulgated by this Court during the aforecited year
affecting the bar candidates concerned; and although this Court
certainly can revoke these judgments even now, for justifiable reasons,
it is no less certain that only this Court, and not the legislative nor
executive department, that may be so. Any attempt on the part of any
of these departments would be a clear usurpation of its functions, as
is the case with the law in question.
That the Constitution has conferred on Congress the power to repeal,
alter or supplement the rule promulgated by this Tribunal, concerning
the admission to the practice of law, is no valid argument. Section 13,
article VIII of the Constitution provides:
Section 13. The Supreme Court shall have the power to
promulgate rules concerning pleading, practice, and
procedure in all courts, and the admission to the practice of
law. Said rules shall be uniform for all courts of the same
grade and shall not diminish, increase or modify substantive
rights. The existing laws on pleading, practice and procedure
are hereby repealed as statutes, and are declared Rules of
Court, subject to the power of the Supreme Court to alter and
modify the same. The Congress shall have the power to repeal,
alter, or supplement the rules concerning pleading, practice,
and procedure, and the admission to the practice of law in the
Philippines. — Constitution of the Philippines, Art. VIII, sec.
13.
It will be noted that the Constitution has not conferred on Congress
and this Tribunal equal responsibilities concerning the admission to
the practice of law. the primary power and responsibility which the
Constitution recognizes continue to reside in this Court. Had Congress
found that this Court has not promulgated any rule on the matter, it
would have nothing over which to exercise the power granted to it.
Congress may repeal, alter and supplement the rules promulgated by
this Court, but the authority and responsibility over the admission,
suspension, disbarment and reinstatement of attorneys at law and
their supervision remain vested in the Supreme Court. The power to
repeal, alter and supplement the rules does not signify nor permit that
Congress substitute or take the place of this Tribunal in the exercise
of its primary power on the matter. The Constitution does not say nor
mean that Congress may admit, suspend, disbar or reinstate directly
attorneys at law, or a determinate group of individuals to the practice
of law. Its power is limited to repeal, modify or supplement the existing
rules on the matter, if according to its judgment the need for a better
service of the legal profession requires it. But this power does not
relieve this Court of its responsibility to admit, suspend, disbar and
reinstate attorneys at law and supervise the practice of the legal
profession.
Being coordinate and independent branches, the power to promulgate
and enforce rules for the admission to the practice of law and the
concurrent power to repeal, alter and supplement them may and
should be exercised with the respect that each owes to the other, giving
careful consideration to the responsibility which the nature of each
department requires. These powers have existed together for centuries
without diminution on each part; the harmonious delimitation being
found in that the legislature may and should examine if the existing
rules on the admission to the Bar respond to the demands which
public interest requires of a Bar endowed with high virtues, culture,
training and responsibility. The legislature may, by means of appeal,
amendment or supplemental rules, fill up any deficiency that it may
find, and the judicial power, which has the inherent responsibility for
a good and efficient administration of justice and the supervision of
the practice of the legal profession, should consider these reforms as
the minimum standards for the elevation of the profession, and see to
it that with these reforms the lofty objective that is desired in the
exercise of its traditional duty of admitting, suspending, disbarring
and reinstating attorneys at law is realized. They are powers which,
exercise within their proper constitutional limits, are not repugnant,
but rather complementary to each other in attaining the establishment
of a Bar that would respond to the increasing and exacting necessities
of the administration of justice.
The case of Guariña (1913) 24 Phil., 37, illustrates our criterion.
Guariña took examination and failed by a few points to obtain the
general average. A recently enacted law provided that one who had
been appointed to the position of Fiscal may be admitted to the
practice of law without a previous examination. The Government
appointed Guariña and he discharged the duties of Fiscal in a remote
province. This tribunal refused to give his license without previous
examinations. The court said:
Relying upon the provisions of section 2 of Act No. 1597, the
applicant in this case seeks admission to the bar, without
taking the prescribed examination, on the ground that he
holds the office of provincial fiscal for the Province of Batanes.
Section 2 of Act No. 1597, enacted February 28, 1907, is as
follows:
Sec. 2. Paragraph one of section thirteen of Act Numbered One
Hundred and ninety, entitled "An Act providing a Code of
Procedure in Civil Actions and Special Proceedings in the
Philippine Islands," is hereby amended to read as follows:
1. Those who have been duly licensed under the laws and
orders of the Islands under the sovereignty of Spain or of the
United States and are in good and regular standing as
members of the bar of the Philippine Islands at the time of the
adoption of this code; Provided, That any person who, prior to
the passage of this act, or at any time thereafter, shall have
held, under the authority of the United States, the position of
justice of the Supreme Court, judge of the Court of First
Instance, or judge or associate judge of the Court of Land
Registration, of the Philippine Islands, or the position of
Attorney General, Solicitor General, Assistant Attorney
General, assistant attorney in the office of the Attorney
General, prosecuting attorney for the City of Manila, city
attorney of Manila, assistant city attorney of Manila,
provincial fiscal, attorney for the Moro Province, or assistant
attorney for the Moro Province, may be licensed to practice
law in the courts of the Philippine Islands without an
examination, upon motion before the Supreme Court and
establishing such fact to the satisfaction of said court.
The records of this court disclose that on a former occasion
this appellant took, and failed to pass the prescribed
examination. The report of the examining board, dated March
23, 1907, shows that he received an average of only 71 per
cent in the various branches of legal learning upon which he
was examined, thus falling four points short of the required
percentage of 75. We would be delinquent in the performance
of our duty to the public and to the bar, if, in the face of this
affirmative indication of the deficiency of the applicant in the
required qualifications of learning in the law at the time when
he presented his former application for admission to the bar,
we should grant him license to practice law in the courts of
these Islands, without first satisfying ourselves that despite
his failure to pass the examination on that occasion, he now
"possesses the necessary qualifications of learning and
ability."
But it is contented that under the provisions of the above-cited
statute the applicant is entitled as of right to be admitted to
the bar without taking the prescribed examination "upon
motion before the Supreme Court" accompanied by
satisfactory proof that he has held and now holds the office of
provincial fiscal of the Province of Batanes. It is urged that
having in mind the object which the legislator apparently
sought to attain in enacting the above-cited amendment to the
earlier statute, and in view of the context generally and
especially of the fact that the amendment was inserted as a
proviso in that section of the original Act which specifically
provides for the admission of certain candidates without
examination. It is contented that this mandatory construction
 is imperatively required in order to give effect to the apparent
intention of the legislator, and to the candidate's claim de
jure to have the power exercised.
And after copying article 9 of Act of July 1, 1902 of the Congress of
the United States, articles 2, 16 and 17 of Act No. 136, and articles 13
to 16 of Act 190, the Court continued:
Manifestly, the jurisdiction thus conferred upon this court by
the commission and confirmed to it by the Act of Congress
would be limited and restricted, and in a case such as that
under consideration wholly destroyed, by giving the word
"may," as used in the above citation from Act of Congress of
July 1, 1902, or of any Act of Congress prescribing, defining
or limiting the power conferred upon the commission is to that
extent invalid and void, as transcending its rightful limits and
authority.
Speaking on the application of the law to those who were appointed to
the positions enumerated, and with particular emphasis in the case of
Guariña, the Court held:
In the various cases wherein applications for the admission to
the bar under the provisions of this statute have been
considered heretofore, we have accepted the fact that such
appointments had been made as satisfactory evidence of the
qualifications of the applicant. But in all of those cases we had
reason to believe that the applicants had been practicing
attorneys prior to the date of their appointment.
In the case under consideration, however, it affirmatively
appears that the applicant was not and never had been
practicing attorney in this or any other jurisdiction prior to
the date of his appointment as provincial fiscal, and it further
affirmatively appears that he was deficient in the required
qualifications at the time when he last applied for admission
to the bar.
In the light of this affirmative proof of his defieciency on that
occasion, we do not think that his appointment to the office of
provincial fiscal is in itself satisfactory proof if his possession
of the necessary qualifications of learning and ability. We
conclude therefore that this application for license to practice
in the courts of the Philippines, should be denied.
In view, however, of the fact that when he took the
examination he fell only four points short of the necessary
grade to entitle him to a license to practice; and in view also
of the fact that since that time he has held the responsible
office of the governor of the Province of Sorsogon and
presumably gave evidence of such marked ability in the
performance of the duties of that office that the Chief
Executive, with the consent and approval of the Philippine
Commission, sought to retain him in the Government service
by appointing him to the office of provincial fiscal, we think
we would be justified under the above-cited provisions of Act
No. 1597 in waiving in his case the ordinary examination
prescribed by general rule, provided he offers satisfactory
evidence of his proficiency in a special examination which will
be given him by a committee of the court upon his application
therefor, without prejudice to his right, if he desires so to do,
to present himself at any of the ordinary examinations
prescribed by general rule. — (In re Guariña, pp. 48-49.)
It is obvious, therefore, that the ultimate power to grant license for the
practice of law belongs exclusively to this Court, and the law passed
by Congress on the matter is of permissive character, or as other
authorities say, merely to fix the minimum conditions for the license.
The law in question, like those in the case of Day and Cannon, has
been found also to suffer from the fatal defect of being a class
legislation, and that if it has intended to make a classification, it is
arbitrary and unreasonable.
In the case of Day, a law enacted on February 21, 1899 required of the
Supreme Court, until December 31 of that year, to grant license for
the practice of law to those students who began studying before
November 4, 1897, and had studied for two years and presented a
diploma issued by a school of law, or to those who had studied in a
law office and would pass an examination, or to those who had studied
for three years if they commenced their studies after the
aforementioned date. The Supreme Court declared that this law was
unconstitutional being, among others, a class legislation. The Court
said:
This is an application to this court for admission to the bar of
this state by virtue of diplomas from law schools issued to the
applicants. The act of the general assembly passed in 1899,
under which the application is made, is entitled "An act to
amend section 1 of an act entitled "An act to revise the law in
relation to attorneys and counselors," approved March 28,
1884, in force July 1, 1874." The amendment, so far as it
appears in the enacting clause, consists in the addition to the
section of the following: "And every application for a license
who shall comply with the rules of the supreme court in regard
to admission to the bar in force at the time such applicant
commend the study of law, either in a law or office or a law
school or college, shall be granted a license under this act
notwithstanding any subsequent changes in said rules". — In
re Day et al, 54 N.Y., p. 646.
. . . After said provision there is a double proviso, one branch
of which is that up to December 31, 1899, this court shall
grant a license of admittance to the bar to the holder of every
diploma regularly issued by any law school regularly
organized under the laws of this state, whose regular course
of law studies is two years, and requiring an attendance by
the student of at least 36 weeks in each of such years, and
showing that the student began the study of law prior to
November 4, 1897, and accompanied with the usual proofs of
good moral character. The other branch of the proviso is that
any student who has studied law for two years in a law office,
or part of such time in a law office, "and part in the aforesaid
law school," and whose course of study began prior to
November 4, 1897, shall be admitted upon a satisfactory
examination by the examining board in the branches now
required by the rules of this court. If the right to admission
exists at all, it is by virtue of the proviso, which, it is claimed,
confers substantial rights and privileges upon the persons
named therein, and establishes rules of legislative creation for
their admission to the bar. (p. 647.)
Considering the proviso, however, as an enactment, it is
clearly a special legislation, prohibited by the constitution,
and invalid as such. If the legislature had any right to admit
attorneys to practice in the courts and take part in the
administration of justice, and could prescribe the character of
evidence which should be received by the court as conclusive
of the requisite learning and ability of persons to practice law,
it could only be done by a general law, persons or classes of
persons. Const. art 4, section 2. The right to practice law is a
privilege, and a license for that purpose makes the holder an
officer of the court, and confers upon him the right to appear
for litigants, to argue causes, and to collect fees therefor, and
creates certain exemptions, such as from jury services and
arrest on civil process while attending court. The law
conferring such privileges must be general in its operation. No
doubt the legislature, in framing an enactment for that
purpose, may classify persons so long as the law establishing
classes in general, and has some reasonable relation to the
end sought. There must be some difference which furnishes a
reasonable basis for different one, having no just relation to
the subject of the legislation. Braceville Coal Co. vs. People,
147 Ill. 66, 35 N.E. 62; Ritchie vs. People, 155 Ill. 98, 40 N.E.
454; Railroad Co. vs. Ellis, 165 U.S. 150, 17 Sup. Ct. 255.
The length of time a physician has practiced, and the skill
acquired by experience, may furnish a basis for classification
(Williams vs. People 121 Ill. 48, II N.E. 881); but the place
where such physician has resided and practiced his
profession cannot furnish such basis, and is an arbitrary
discrimination, making an enactment based upon it void
(State vs. Pennyeor, 65 N.E. 113, 18 Atl. 878). Here the
legislature undertakes to say what shall serve as a test of
fitness for the profession of the law, and plainly, any
classification must have some reference to learning,
character, or ability to engage in such practice. The proviso is
limited, first, to a class of persons who began the study of law
prior to November 4, 1897. This class is subdivided into two
classes — First, those presenting diplomas issued by any law
school of this state before December 31, 1899; and, second,
those who studied law for the period of two years in a law
office, or part of the time in a law school and part in a law
office, who are to be admitted upon examination in the
subjects specified in the present rules of this court, and as to
this latter subdivision there seems to be no limit of time for
making application for admission. As to both classes, the
conditions of the rules are dispensed with, and as between the
two different conditions and limits of time are fixed. No course
of study is prescribed for the law school, but a diploma
granted upon the completion of any sort of course its
 managers may prescribe is made all-sufficient. Can there be
anything with relation to the qualifications or fitness of
persons to practice law resting upon the mere date of
November 4, 1897, which will furnish a basis of classification.
Plainly not. Those who began the study of law November 4th
could qualify themselves to practice in two years as well as
those who began on the 3rd. The classes named in the proviso
need spend only two years in study, while those who
commenced the next day must spend three years, although
they would complete two years before the time limit. The one
who commenced on the 3rd. If possessed of a diploma, is to
be admitted without examination before December 31, 1899,
and without any prescribed course of study, while as to the
other the prescribed course must be pursued, and the
diploma is utterly useless. Such classification cannot rest
upon any natural reason, or bear any just relation to the
subject sought, and none is suggested. The proviso is for the
sole purpose of bestowing privileges upon certain defined
persons. (pp. 647-648.)
In the case of Cannon above cited, State vs. Cannon, 240 N.W. 441,
where the legislature attempted by law to reinstate Cannon to the
practice of law, the court also held with regards to its aspect of being
a class legislation:
But the statute is invalid for another reason. If it be granted
that the legislature has power to prescribe ultimately and
definitely the qualifications upon which courts must admit
and license those applying as attorneys at law, that power can
not be exercised in the manner here attempted. That power
must be exercised through general laws which will apply to all
alike and accord equal opportunity to all. Speaking of the right
of the Legislature to exact qualifications of those desiring to
pursue chosen callings, Mr. Justice Field in the case of Dent.
vs. West Virginia, 129 U.S. 114, 121, 9 S. Ct. 232, 233, 32 L.
Ed. 626, said: "It is undoubtedly the right of every citizen of
the United States to follow any lawful calling, business or
profession he may choose, subject only to such restrictions as
are imposed upon all persons of like age, sex, and condition."
This right may in many respects be considered as a
distinguishing feature of our republican institutions. Here all
vocations are all open to every one on like conditions. All may
be pursued as sources of livelihood, some requiring years of
study and great learning for their successful prosecution. The
interest, or, as it is sometimes termed, the "estate" acquired
in them — that is, the right to continue their prosecution —
is often of great value to the possessors and cannot be
arbitrarily taken from them, any more than their real or
personal property can be thus taken. It is fundamental under
our system of government that all similarly situated and
possessing equal qualifications shall enjoy equal
opportunities. Even statutes regulating the practice of
medicine, requiring medications to establish the possession
on the part of the application of his proper qualifications
before he may be licensed to practice, have been challenged,
and courts have seriously considered whether the exemption
from such examinations of those practicing in the state at the
time of the enactment of the law rendered such law
unconstitutional because of infringement upon this general
principle. State vs. Thomas Call, 121 N.C. 643, 28 S.E. 517;
see, also, The State ex rel. Winkler vs. Rosenberg, 101 Wis.
172, 76 N.W. 345; State vs. Whitcom, 122 Wis. 110, 99 N.W.
468.
This law singles out Mr. Cannon and assumes to confer upon
him the right to practice law and to constitute him an officer
of this Court as a mere matter of legislative grace or favor. It
is not material that he had once established his right to
practice law and that one time he possessed the requisite
learning and other qualifications to entitle him to that right.
That fact in no matter affect the power of the Legislature to
select from the great body of the public an individual upon
whom it would confer its favors.
A statute of the state of Minnesota (Laws 1929, c. 424)
commanded the Supreme Court to admit to the practice of law
without examination, all who had served in the military or
naval forces of the United States during the World War and
received a honorable discharge therefrom and who (were
disabled therein or thereby within the purview of the Act of
Congress approved June 7th, 1924, known as "World War
Veteran's Act, 1924 and whose disability is rated at least ten
per cent thereunder at the time of the passage of this Act."
This Act was held |unconstitutional on the ground that it
clearly violated the quality clauses of the constitution of that
 state. In re Application of George W. Humphrey, 178 Minn.
331, 227 N.W. 179.
A good summary of a classification constitutionally acceptable is
explained in 12 Am. Jur. 151-153 as follows:
The general rule is well settled by unanimity of the authorities
that a classification to be valid must rest upon material
differences between the person included in it and those
excluded and, furthermore, must be based upon substantial
distinctions. As the rule has sometimes avoided the
constitutional prohibition, must be founded upon pertinent
and real differences, as distinguished from irrelevant and
artificial ones. Therefore, any law that is made applicable to
one class of citizens only must be based on some substantial
difference between the situation of that class and other
individuals to which it does not apply and must rest on some
reason on which it can be defended. In other words, there
must be such a difference between the situation and
circumstances of all the members of the class and the
situation and circumstances of all other members of the state
in relation to the subjects of the discriminatory legislation as
presents a just and natural cause for the difference made in
their liabilities and burdens and in their rights and privileges.
A law is not general because it operates on all within a clause
unless there is a substantial reason why it is made to operate
on that class only, and not generally on all. (12 Am. Jur. pp.
151-153.)
Pursuant to the law in question, those who, without a grade below 50
per cent in any subject, have obtained a general average of 69.5 per
cent in the bar examinations in 1946 to 1951, 70.5 per cent in 1952,
71.5 per cent in 1953, and those will obtain 72.5 per cent in 1954,
and 73.5 per cent in 1955, will be permitted to take and subscribe the
corresponding oath of office as members of the Bar, notwithstanding
that the rules require a minimum general average of 75 per cent, which
has been invariably followed since 1950. Is there any motive of the
nature indicated by the abovementioned authorities, for this
classification ? If there is none, and none has been given, then the
classification is fatally defective.
It was indicated that those who failed in 1944, 1941 or the years
before, with the general average indicated, were not included because
the Tribunal has no record of the unsuccessful candidates of those
years. This fact does not justify the unexplained classification of
unsuccessful candidates by years, from 1946-1951, 1952, 1953,
1954, 1955. Neither is the exclusion of those who failed before said
years under the same conditions justified. The fact that this Court has
no record of examinations prior to 1946 does not signify that no one
concerned may prove by some other means his right to an equal
consideration.
To defend the disputed law from being declared unconstitutional on
account of its retroactivity, it is argued that it is curative, and that in
such form it is constitutional. What does Rep. Act 972 intend to cure
? Only from 1946 to 1949 were there cases in which the Tribunal
permitted admission to the bar of candidates who did not obtain the
general average of 75 per cent: in 1946 those who obtained only 72
per cent; in the 1947 and those who had 69 per cent or more; in 1948,
70 per cent and in 1949, 74 per cent; and in 1950 to 1953, those who
obtained 74 per cent, which was considered by the Court as equivalent
to 75 per cent as prescribed by the Rules, by reason of circumstances
deemed to be sufficiently justifiable. These changes in the passing
averages during those years were all that could be objected to or
criticized. Now, it is desired to undo what had been done — cancel the
license that was issued to those who did not obtain the prescribed 75
per cent ? Certainly not. The disputed law clearly does not propose to
do so. Concededly, it approves what has been done by this Tribunal.
What Congress lamented is that the Court did not consider 69.5 per
cent obtained by those candidates who failed in 1946 to 1952 as
sufficient to qualify them to practice law. Hence, it is the lack of will
or defect of judgment of the Court that is being cured, and to complete
the cure of this infirmity, the effectivity of the disputed law is being
extended up to the years 1953, 1954 and 1955, increasing each year
the general average by one per cent, with the order that said
candidates be admitted to the Bar. This purpose, manifest in the said
law, is the best proof that what the law attempts to amend and correct
are not the rules promulgated, but the will or judgment of the Court,
by means of simply taking its place. This is doing directly what the
Tribunal should have done during those years according to the
judgment of Congress. In other words, the power exercised was not to
repeal, alter or supplement the rules, which continue in force. What
was done was to stop or suspend them. And this power is not included
in what the Constitution has granted to Congress, because it falls
within the power to apply the rules. This power corresponds to the
judiciary, to which such duty been confided.
Article 2 of the law in question permits partial passing of
examinations, at indefinite intervals. The grave defect of this system
is that it does not take into account that the laws and jurisprudence
are not stationary, and when a candidate finally receives his
certificate, it may happen that the existing laws and jurisprudence are
already different, seriously affecting in this manner his usefulness.
The system that the said law prescribes was used in the first bar
examinations of this country, but was abandoned for this and other
disadvantages. In this case, however, the fatal defect is that the article
is not expressed in the title will have temporary effect only from 1946
to 1955, the text of article 2 establishes a permanent system for an
indefinite time. This is contrary to Section 21 (1), article VI of the
Constitution, which vitiates and annuls article 2 completely; and
because it is inseparable from article 1, it is obvious that its nullity
affect the entire law.
Laws are unconstitutional on the following grounds: first, because
they are not within the legislative powers of Congress to enact, or
Congress has exceeded its powers; second, because they create or
establish arbitrary methods or forms that infringe constitutional
principles; and third, because their purposes or effects violate the
Constitution or its basic principles. As has already been seen, the
contested law suffers from these fatal defects.
Summarizing, we are of the opinion and hereby declare that Republic
Act No. 972 is unconstitutional and therefore, void, and without any
force nor effect for the following reasons, to wit:
1. Because its declared purpose is to admit 810 candidates who failed
in the bar examinations of 1946-1952, and who, it admits, are
certainly inadequately prepared to practice law, as was exactly found
by this Court in the aforesaid years. It decrees the admission to the
Bar of these candidates, depriving this Tribunal of the opportunity to
determine if they are at present already prepared to become members
of the Bar. It obliges the Tribunal to perform something contrary to
reason and in an arbitrary manner. This is a manifest encroachment
on the constitutional responsibility of the Supreme Court.
2. Because it is, in effect, a judgment revoking the resolution of this
Court on the petitions of these 810 candidates, without having
examined their respective examination papers, and although it is
admitted that this Tribunal may reconsider said resolution at any time
for justifiable reasons, only this Court and no other may revise and
alter them. In attempting to do it directly Republic Act No. 972 violated
the Constitution.
3. By the disputed law, Congress has exceeded its legislative power to
repeal, alter and supplement the rules on admission to the Bar. Such
additional or amendatory rules are, as they ought to be, intended to
regulate acts subsequent to its promulgation and should tend to
improve and elevate the practice of law, and this Tribunal shall
consider these rules as minimum norms towards that end in the
admission, suspension, disbarment and reinstatement of lawyers to
the Bar, inasmuch as a good bar assists immensely in the daily
performance of judicial functions and is essential to a worthy
administration of justice. It is therefore the primary and inherent
prerogative of the Supreme Court to render the ultimate decision on
who may be admitted and may continue in the practice of law
according to existing rules.
4. The reason advanced for the pretended classification of candidates,
which the law makes, is contrary to facts which are of general
knowledge and does not justify the admission to the Bar of law
students inadequately prepared. The pretended classification is
arbitrary. It is undoubtedly a class legislation.
5. Article 2 of Republic Act No. 972 is not embraced in the title of the
law, contrary to what the Constitution enjoins, and being inseparable
from the provisions of article 1, the entire law is void.
6. Lacking in eight votes to declare the nullity of that part of article 1
referring to the examinations of 1953 to 1955, said part of article 1,
insofar as it concerns the examinations in those years, shall continue
in force.
RESOLUTION
Upon mature deliberation by this Court, after hearing and availing of
the magnificent and impassioned discussion of the contested law by
our Chief Justice at the opening and close of the debate among the
members of the Court, and after hearing the judicious observations of
two of our beloved colleagues who since the beginning have
announced their decision not to take part in voting, we, the eight
members of the Court who subscribed to this decision have voted and
resolved, and have decided for the Court, and under the authority of
the same:
1. That (a) the portion of article 1 of Republic Act No. 972 referring to
the examinations of 1946 to 1952, and (b) all of article 2 of said law
are unconstitutional and, therefore, void and without force and effect.
2. That, for lack of unanimity in the eight Justices, that part of article
1 which refers to the examinations subsequent to the approval of the
law, that is from 1953 to 1955 inclusive, is valid and shall continue to
be in force, in conformity with section 10, article VII of the
Constitution.
Consequently, (1) all the above-mentioned petitions of the candidates
who failed in the examinations of 1946 to 1952 inclusive are denied,
and (2) all candidates who in the examinations of 1953 obtained a
general average of 71.5 per cent or more, without having a grade below
50 per cent in any subject, are considered as having passed, whether
they have filed petitions for admission or not. After this decision has
become final, they shall be permitted to take and subscribe the
corresponding oath of office as members of the Bar on the date or dates
that the chief Justice may set. So ordered.
Bengzon, Montemayor, Jugo, Labrador, Pablo, Padilla, and Reyes,
JJ., concur.
There are the unsuccessful candidates totaling 604 directly affected
by this resolution. Adding 490 candidates who have not presented any
petition, they reach a total of 1,094.
The Enactment of Republic Act No. 972
As will be observed from Annex I, this Court reduced to 72 per cent
the passing general average in the bar examination of august and
November of 1946; 69 per cent in 1947; 70 per cent in 1948; 74 per
cent in 1949; maintaining the prescribed 75 per cent since 1950, but
raising to 75 per cent those who obtained 74 per cent since 1950. This
caused the introduction in 1951, in the Senate of the Philippines of
Bill No. 12 which was intended to amend Sections 5, 9, 12, 14 and 16
of Rule 127 of the Rules of Court, concerning the admission of
attorneys-at-law to the practice of the profession. The amendments
embrace many interesting matters, but those referring to sections 14
and 16 immediately concern us. The proposed amendment is as
follows:
SEC. 14. Passing average. — In order that a candidate may
be deemed to have passed the examinations successfully, he
must have obtained a general average of 70 per cent without
falling below 50 per cent in any subject. In determining the
average, the foregoing subjects shall be given the following
relative weights: Civil Law, 20 per cent; Land Registration and
Mortgages, 5 per cent; Mercantile Law, 15 per cent; Criminal
Law, 10 per cent; Political Law, 10 per cent; International Law,
5 per cent; Remedial Law, 20 per cent; Legal Ethics and
Practical Exercises, 5 per cent; Social Legislation, 5 per cent;
Taxation, 5 per cent. Unsuccessful candidates shall not be
required to take another examination in any subject in which
they have obtained a rating of 70 per cent or higher and such
rating shall be taken into account in determining their general
average in any subsequent examinations: Provided, however,
That if the candidate fails to get a general average of 70 per
cent in his third examination, he shall lose the benefit of
having already passed some subjects and shall be required to
the examination in all the subjects.
SEC. 16. Admission and oath of successful applicants. — Any
applicant who has obtained a general average of 70 per cent
in all subjects without falling below 50 per cent in any
examination held after the 4th day of July, 1946, or who has
been otherwise found to be entitled to admission to the bar,
shall be allowed to take and subscribe before the Supreme
Court the corresponding oath of office. (Arts. 4 and 5, 8, No.
12).
With the bill was an Explanatory Note, the portion pertinent to the
matter before us being:
 It seems to be unfair that unsuccessful candidates at bar
examinations should be compelled to repeat even those
subjects which they have previously passed. This is not the
case in any other government examination. The Rules of Court
have therefore been amended in this measure to give a
candidate due credit for any subject which he has previously
passed with a rating of 75 per cent or higher."
Senate Bill No. 12 having been approved by Congress on May 3, 1951,
the President requested the comments of this Tribunal before acting
on the same. The comment was signed by seven Justices while three
chose to refrain from making any and one took no part. With regards
to the matter that interests us, the Court said:
The next amendment is of section 14 of Rule 127. One part of
this amendment provides that if a bar candidate obtains 70
per cent or higher in any subject, although failing to pass the
examination, he need not be examined in said subject in his
next examination. This is a sort of passing the Bar
Examination on the installment plan, one or two or three
subjects at a time. The trouble with this proposed system is
that although it makes it easier and more convenient for the
candidate because he may in an examination prepare himself
on only one or two subjects so as to insure passing them, by
the time that he has passed the last required subjects, which
may be several years away from the time that he reviewed and
passed the firs subjects, he shall have forgotten the principles
and theories contained in those subjects and remembers only
those of the one or two subjects that he had last reviewed and
passed. This is highly possible because there is nothing in the
law which requires a candidate to continue taking the Bar
examinations every year in succession. The only condition
imposed is that a candidate, on this plan, must pass the
examination in no more that three installments; but there is
no limitation as to the time or number of years intervening
between each examination taken. This would defeat the object
and the requirements of the law and the Court in admitting
persons to the practice of law. When a person is so admitted,
it is to be presumed and presupposed that he possesses the
knowledge and proficiency in the law and the knowledge of all
law subjects required in bar examinations, so as presently to
be able to practice the legal profession and adequately render
the legal service required by prospective clients. But this
would not hold true of the candidates who may have obtained
a passing grade on any five subjects eight years ago, another
three subjects one year later, and the last two subjects the
present year. We believe that the present system of requiring
a candidate to obtain a passing general average with no grade
in any subject below 50 per cent is more desirable and
satisfactory. It requires one to be all around, and prepared in
all required legal subjects at the time of admission to the
practice of law.
xxx xxx xxx
We now come to the last amendment, that of section 16 of
Rule 127. This amendment provides that any application who
has obtained a general average of 70 per cent in all subjects
without failing below 50 per cent in any subject in any
examination held after the 4th day of July, 1946, shall be
allowed to take and subscribe the corresponding oath of office.
In other words, Bar candidates who obtained not less than 70
per cent in any examination since the year 1946 without
failing below 50 per cent in any subject, despite their non-
admission to the Bar by the Supreme Court because they
failed to obtain a passing general average in any of those
years, will be admitted to the Bar. This provision is not only
prospective but retroactive in its effects.
We have already stated in our comment on the next preceding
amendment that we are not exactly in favor of reducing the
passing general average from 75 per cent to 70 per cent to
govern even in the future. As to the validity of making such
reduction retroactive, we have serious legal doubts. We should
not lose sight of the fact that after every bar examinations, the
Supreme Court passes the corresponding resolution not only
admitting to the Bar those who have obtained a passing
general average grade, but also rejecting and denying the
petitions for reconsideration of those who have failed. The
present amendment would have the effect of repudiating,
reversing and revoking the Supreme Court's resolution
denying and rejecting the petitions of those who may have
obtained an average of 70 per cent or more but less than the
general passing average fixed for that year. It is clear that this
question involves legal implications, and this phase of the
amendment if finally enacted into law might have to go thru a
 legal test. As one member of the Court remarked during the
discussion, when a court renders a decision or promulgate a
resolution or order on the basis of and in accordance with a
certain law or rule then in force, the subsequent amendment
or even repeal of said law or rule may not affect the final
decision, order, or resolution already promulgated, in the
sense of revoking or rendering it void and of no effect.
Another aspect of this question to be considered is the fact
that members of the bar are officers of the courts, including
the Supreme Court. When a Bar candidate is admitted to the
Bar, the Supreme Court impliedly regards him as a person fit,
competent and qualified to be its officer. Conversely, when it
refused and denied admission to the Bar to a candidate who
in any year since 1946 may have obtained a general average
of 70 per cent but less than that required for that year in order
to pass, the Supreme Court equally and impliedly considered
and declared that he was not prepared, ready, competent and
qualified to be its officer. The present amendment giving
retroactivity to the reduction of the passing general average
runs counter to all these acts and resolutions of the Supreme
Court and practically and in effect says that a candidate not
accepted, and even rejected by the Court to be its officer
because he was unprepared, undeserving and unqualified,
nevertheless and in spite of all, must be admitted and allowed
by this Court to serve as its officer. We repeat, that this is
another important aspect of the question to be carefully and
seriously considered.
The President vetoed the bill on June 16, 1951, stating the following:
I am fully in accord with the avowed objection of the bill,
namely, to elevate the standard of the legal profession and
maintain it on a high level. This is not achieved, however, by
admitting to practice precisely a special class who have failed
in the bar examination, Moreover, the bill contains provisions
to which I find serious fundamental objections.
Section 5 provides that any applicant who has obtained a
general average of 70 per cent in all subjects without failing
below 50 per cent in any subject in any examination held after
the 4th day of July, 1946, shall be allowed to take and
subscribed the corresponding oath of office. This provision
constitutes class legislation, benefiting as it does specifically
one group of persons, namely, the unsuccessful candidates in
the 1946, 1947, 1948, 1949 and 1950 bar examinations.
The same provision undertakes to revoke or set aside final
resolutions of the Supreme Court made in accordance with
the law then in force. It should be noted that after every bar
examination the Supreme Court passes the corresponding
resolution not only admitting to the Bar those who have
obtained a passing general average but also rejecting and
denying the petitions for reconsideration of those who have
failed. The provision under consideration would have the
effect of revoking the Supreme Court's resolution denying and
rejecting the petitions of those who may have failed to obtain
the passing average fixed for that year. Said provision also sets
a bad precedent in that the Government would be morally
obliged to grant a similar privilege to those who have failed in
the examinations for admission to other professions such as
medicine, engineering, architecture and certified public
accountancy.
Consequently, the bill was returned to the Congress of the Philippines,
but it was not repassed by 2/3 vote of each House as prescribed by
section 20, article VI of the Constitution. Instead Bill No. 371 was
presented in the Senate. It reads as follows:
AN ACT TO FIX THE PASSING MARKS FOR BAR
EXAMINATIONS FROM 1946 UP TO AND INCLUDING 1953
Be it enacted by the Senate and House of Representatives of
the Philippines in Congress assembled:
SECTION 1. Notwithstanding the provisions of section 14,
Rule 127 of the Rules of Court, any bar candidate who
obtained a general average of 70 per cent in any bar
examinations after July 4, 1946 up to the August 1951 Bar
examinations; 71 per cent in the 1952 bar examinations; 72
per cent in the 1953 bar examinations; 73 per cent in the 1954
bar examinations; 74 per cent in 1955 bar examinations
without a candidate obtaining a grade below 50 per cent in
any subject, shall be allowed to take and subscribe the
 corresponding oath of office as member of the Philippine
Bar; Provided, however, That 75 per cent passing general
average shall be restored in all succeeding examinations;
and Provided, finally, That for the purpose of this Act, any
exact one-half or more of a fraction, shall be considered as one
and included as part of the next whole number.
SEC. 2. Any bar candidate who obtained a grade of 75 per cent
in any subject in any bar examination after July 4, 1945 shall
be deemed to have passed in such subject or subjects and
such grade or grades shall be included in computing the
passing general average that said candidate may obtain in any
subsequent examinations that he may take.
SEC. 3. This bill shall take effect upon its approval.
With the following explanatory note:
This is a revised Bar bill to meet the objections of the President
and to afford another opportunity to those who feel themselves
discriminated by the Supreme Court from 1946 to 1951 when
those who would otherwise have passed the bar examination
but were arbitrarily not so considered by altering its previous
decisions of the passing mark. The Supreme Court has been
altering the passing mark from 69 in 1947 to 74 in 1951. In
order to cure the apparent arbitrary fixing of passing grades
and to give satisfaction to all parties concerned, it is proposed
in this bill a gradual increase in the general averages for
passing the bar examinations as follows; For 1946 to 1951 bar
examinations, 70 per cent; for 1952 bar examination, 71 per
cent; for 1953 bar examination, 72 per cent; for 1954 bar
examination, 73 percent; and for 1955 bar examination, 74
per cent. Thus in 1956 the passing mark will be restored with
the condition that the candidate shall not obtain in any
subject a grade of below 50 per cent. The reason for relaxing
the standard 75 per cent passing grade, is the tremendous
handicap which students during the years immediately after
the Japanese occupation has to overcome such as the
insufficiency of reading materials and the inadequacy of the
preparation of students who took up law soon after the
liberation. It is believed that by 1956 the preparation of our
students as well as the available reading materials will be
under normal conditions, if not improved from those years
preceding the last world war.
In this will we eliminated altogether the idea of having our
Supreme Court assumed the supervision as well as the
administration of the study of law which was objected to by
the President in the Bar Bill of 1951.
The President in vetoing the Bar Bill last year stated among
his objections that the bill would admit to the practice of law
"a special class who failed in the bar examination". He
considered the bill a class legislation. This contention,
however, is not, in good conscience, correct because Congress
is merely supplementing what the Supreme Court have
already established as precedent by making as low as 69 per
cent the passing mark of those who took the Bar examination
in 1947. These bar candidates for who this bill should be
enacted, considered themselves as having passed the bar
examination on the strength of the established precedent of
our Supreme Court and were fully aware of the
insurmountable difficulties and handicaps which they were
unavoidably placed. We believe that such precedent cannot or
could not have been altered, constitutionally, by the Supreme
Court, without giving due consideration to the rights already
accrued or vested in the bar candidates who took the
examination when the precedent was not yet altered, or in
effect, was still enforced and without being inconsistent with
the principles of their previous resolutions.
If this bill would be enacted, it shall be considered as a simple
curative act or corrective statute which Congress has the
power to enact. The requirement of a "valid classification" as
against class legislation, is very expressed in the following
American Jurisprudence:
A valid classification must include all who naturally belong to
the class, all who possess a common disability, attribute, or
classification, and there must be a "natural" and substantial
differentiation between those included in the class and those
it leaves untouched. When a class is accepted by the Court as
"natural" it cannot be again split and then have the dissevered
factions of the original unit designated with different rules
 established for each. (Fountain Park Co. vs. Rensier, 199 Ind.
95, N. E. 465 (1926).
Another case penned by Justice Cardozo: "Time with its tides
brings new conditions which must be cared for by new laws.
Sometimes the new conditions affect the members of a class.
If so, the correcting statute must apply to all alike. Sometimes
the condition affect only a few. If so, the correcting statute
may be as narrow as the mischief. The constitution does not
prohibit special laws inflexibly and always. It permits them
when there are special evils with which the general laws are
incompetent to cope. The special public purpose will sustain
the special form. . . . The problem in the last analysis is one
of legislative policy, with a wide margin of discretion conceded
to the lawmakers. Only in the case of plain abuse will there be
revision by the court. (In Williams vs. Mayor and City Council
of Baltimore, 286 U. S. 36, 77 L. Ed. 1015, 53 Sup. Ct. 431).
(1932)
This bill has all the earmarks of a corrective statute which
always retroacts to the extent of the care of correction only as
in this case from 1946 when the Supreme Court first deviated
from the rule of 75 per cent in the Rules of Court.
For the foregoing purposes the approval of this bill is earnestly
recommended.
(Sgd.) PABLO ANGELES DAVID
Senator
Without much debate, the revised bill was passed by Congress as
above transcribed. The President again asked the comments of this
Court, which endorsed the following:
Respectfully returned to the Honorable, the Acting Executive
Secretary, Manila, with the information that, with respect to
Senate Bill No. 371, the members of the Court are taking the
same views they expressed on Senate Bill No. 12 passed by
Congress in May, 1951, contained in the first indorsement of
the undersigned dated June 5, 1951, to the Assistant
Executive Secretary.
(Sgd.) RICARDO PARAS
The President allowed the period within which the bill should be
signed to pass without vetoing it, by virtue of which it became a law
on June 21, 1953 (Sec. 20, Art. VI, Constitution) numbered 972 (many
times erroneously cited as No. 974).
It may be mentioned in passing that 1953 was an election year, and
that both the President and the author of the Bill were candidates for
re-election, together, however, they lost in the polls.
Separate Opinions
LABRADOR, J., concurring and dissenting:
The right to admit members to the Bar is, and has always been, the
exclusive privilege of this Court, because lawyers are members of the
Court and only this Court should be allowed to determine admission
thereto in the interest of the principle of the separation of powers. The
power to admit is judicial in the sense that discretion is used in is
exercise. This power should be distinguished from the power to
promulgate rules which regulate admission. It is only this power (to
promulgate amendments to the rules) that is given in the Constitution
to the Congress, not the exercise of the discretion to admit or not to
admit. Thus the rules on the holding of examination, the qualifications
of applicants, the passing grades, etc. are within the scope of the
legislative power. But the power to determine when a candidate has
made or has not made the required grade is judicial, and lies
completely with this Court.
I hold that the act under consideration is an exercise of the judicial
function, and lies beyond the scope of the congressional prerogative of
amending the rules. To say that candidates who obtain a general
average of 72 per cent in 1953, 73 per cent in 1954, and 74 per cent
in 1955 should be considered as having passed the examination, is to
mean exercise of the privilege and discretion judged in this Court. It is
a mandate to the tribunal to pass candidates for different years with
grades lower than the passing mark. No reasoning is necessary to
show that it is an arrogation of the Court's judicial authority and
discretion. It is furthermore objectionable as discriminatory. Why
should those taking the examinations in 1953, 1954 and 1955 be
allowed to have the privilege of a lower passing grade, while those
taking earlier or later are not?
I vote that the act in toto be declared unconstitutional, because it is
not embraced within the rule-making power of Congress, because it is
an undue interference with the power of this Court to admit members
thereof, and because it is discriminatory.
PARAS, C.J., dissenting:
Under section 145 of Rule of Court No. 127, in order that a bar
candidate "may be deemed to have passed his examinations
successfully, he must have obtained a general average of 75 per cent
in all subjects, without falling below 50 per cent in any subject.' This
passing mark has always been adhered to, with certain exception
presently to be specified.
With reference to the bar examinations given in August, 1946, the
original list of successful candidates included only those who obtained
a general average of 75 per cent or more. Upon motion for
reconsideration, however, 12 candidates with general averages
ranging from 72 to 73 per cent were raised to 75 per cent by resolution
of December 18, 1946. In the examinations of November, 1946 the list
first released containing the names of successful candidates covered
only those who obtained a general average of 75 per cent or more; but,
upon motion for reconsideration, 19 candidates with a general average
of 72 per cent were raised to 75 per cent by resolution of March 31,
1947. This would indicate that in the original list of successful
candidates those having a general average of 73 per cent or more but
below 75 per cent were included. After the original list of 1947
successful bar candidates had been released, and on motion for
reconsideration, all candidates with a general average of 69 per cent
were allowed to pass by resolution of July 15, 1948. With respect to
the bar examinations held in August, 1948, in addition to the original
list of successful bar candidates, all those who obtained a general
average of 70 per cent or more, irrespective of the grades in any one
subject and irrespective of whether they filed petitions for
reconsideration, were allowed to pass by resolution of April 28, 1949.
Thus, for the year 1947 the Court in effect made 69 per cent as the
passing average, and for the year 1948, 70 per cent; and this
amounted, without being noticed perhaps, to an amendment of section
14 of Rule 127.
Numerous flunkers in the bar examinations held subsequent to 1948,
whose general averages mostly ranged from 69 to 73 per cent, filed
motions for reconsideration invoking the precedents set by this Court
in 1947 and 1948, but said motions were uniformly denied.
In the year 1951, the Congress, after public hearings where law deans
and professors, practising attorneys, presidents of bar associations,
and law graduates appeared and argued lengthily pro or con, approved
a bill providing, among others, for the reduction of the passing general
average from 75 per cent to 70 per cent, retroactive to any bar
examination held after July 4, 1946. This bill was vetoed by the
President mainly in view of an unfavorable comment of Justices
Padilla, Tuason, Montemayor, Reyes, Bautista and Jugo. In 1953, the
Congress passed another bill similar to the previous bill vetoed by the
President, with the important difference that in the later bill the
provisions in the first bill regarding (1) the supervision and regulation
by the Supreme Court of the study of law, (2) the inclusion of Social
Legislation and Taxation as new bar subjects, (3) the publication of
the bar examiners before the holding of the examination, and (4) the
equal division among the examiners of all the admission fees paid by
bar applicants, were eliminated. This second bill was allowed to
become a law, Republic Act No. 972, by the President by merely not
signing it within the required period; and in doing so the President
gave due respect to the will of the Congress which, speaking for the
people, chose to repass the bill first vetoed by him.
Under Republic Act No. 972, any bar candidates who obtained a
general average of 70 per cent in any examinations after July 4, 1946
up to August 1951; 71 per cent in the 1952 bar examinations; 72 per
cent in 1953 bar examinations; 73 per cent in the 1954 bar
examinations; and 74 per cent in the 1955 bar examinations, without
obtaining a grade below 50 per cent in any subject, shall be allowed to
pass. Said Act also provides that any bar candidate who obtained a
grade of 75 per cent in any subject in any examination after July 4,
1946, shall be deemed to have passed in such subject or subjects and
such grade or grades shall be included in computing the passing in
any subsequent examinations.
Numerous candidates who had taken the bar examinations previous
to the approval of Republic Act No. 972 and failed to obtain the
necessary passing average, filed with this Court mass or separate
petitions, praying that they be admitted to the practice of law under
and by virtue of said Act, upon the allegation that they have obtained
the general averages prescribed therein. In virtue of the resolution of
July 6, 1953, this Court held on July 11, 1953 a hearing on said
petitions, and members of the bar, especially authorized
representatives of bar associations, were invited to argue or submit
memoranda as amici curiae, the reason alleged for said hearing being
that some doubt had "been expressed on the constitutionality of
Republic Act No. 972 in so far as it affects past bar examinations and
the matter" involved "a new question of public interest."
All discussions in support of the proposition that the power to regulate
the admission to the practice of law is inherently judicial, are
immaterial, because the subject is now governed by the Constitution
which in Article VII, section 13, provides as follows:
The Supreme Court shall have the power to promulgate rules
concerning pleading, practice, and procedure in all courts,
and the admission to the practice of law. Said rules shall be
uniform for all courts of the same grade and shall not
diminish, increase or modify substantive right. The existing
laws on pleading, practice, and procedure are hereby repealed
as statutes and are declared Rules of Court, subject to the
power of the Supreme Court to alter and modify the same. The
Congress shall have the power to repeal, alter, or supplement
the rules concerning pleading, practice, and procedure, and
the admission to the practice of law in the Philippines.
Under this constitutional provision, while the Supreme Court has the
power to promulgate rules concerning the admission to the practice of
law, the Congress has the power to repeal, alter or supplement said
rules. Little intelligence is necessary to see that the power of the
Supreme Court and the Congress to regulate the admission to the
practice of law is concurrent.
The opponents of Republic Act No. 972 argue that this Act, in so far
as it covers bar examinations held prior to its approval, is
unconstitutional, because it sets aside the final resolutions of the
Supreme Court refusing to admit to the practice of law the various
petitioners, thereby resulting in a legislative encroachment upon the
judicial power. In my opinion this view is erroneous. In the first place,
resolutions on the rejection of bar candidates do not have the finality
of decisions in justiciable cases where the Rules of Court expressly fix
certain periods after which they become executory and unalterable.
Resolutions on bar matters, specially on motions for reconsiderations
filed by flunkers in any give year, are subject to revision by this Court
at any time, regardless of the period within which the motion were
filed, and this has been the practice heretofore. The obvious reason is
that bar examinations and admission to the practice of law may be
deemed as a judicial function only because said matters happen to be
entrusted, under the Constitution and our Rules of Court, to the
Supreme Court. There is no judicial function involved, in the subject
and constitutional sense of the word, because bar examinations and
the admission to the practice of law, unlike justiciable cases, do not
affect opposing litigants. It is no more than the function of other
examining boards. In the second place, retroactive laws are not
prohibited by the Constitution, except only when they would be ex post
facto, would impair obligations and contracts or vested rights or would
deny due process and equal protection of the law. Republic Act No.
972 certainly is not an ex post facto enactment, does not impair any
obligation and contract or vested rights, and denies to no one the right
to due process and equal protection of the law. On the other hand, it
is a mere curative statute intended to correct certain obvious
inequalities arising from the adoption by this Court of different passing
general averages in certain years.
Neither can it be said that bar candidates prior to July 4, 1946, are
being discriminated against, because we no longer have any record of
those who might have failed before the war, apart from the
circumstance that 75 per cent had always been the passing mark
during said period. It may also be that there are no pre-war bar
candidates similarly situated as those benefited by Republic Act No.
972. At any rate, in the matter of classification, the reasonableness
must be determined by the legislative body. It is proper to recall that
the Congress held public hearings, and we can fairly suppose that the
classification adopted in the Act reflects good legislative judgment
derived from the facts and circumstances then brought out.
As regards the alleged interference in or encroachment upon the
judgment of this Court by the Legislative Department, it is sufficient
to state that, if there is any interference at all, it is one expressly
sanctioned by the Constitution. Besides, interference in judicial
adjudication prohibited by the Constitution is essentially aimed at
protecting rights of litigants that have already been vested or acquired
in virtue of decisions of courts, not merely for the empty purpose of
creating appearances of separation and equality among the three
branches of the Government. Republic Act No. 972 has not produced
a case involving two parties and decided by the Court in favor of one
and against the other. Needless to say, the statute will not affect the
previous resolutions passing bar candidates who had obtained the
general average prescribed by section 14 of Rule 127. A law would be
objectionable and unconstitutional if, for instance, it would provide
that those who have been admitted to the bar after July 4, 1946, whose
general average is below 80 per cent, will not be allowed to practice
law, because said statute would then destroy a right already acquired
under previous resolutions of this Court, namely, the bar admission
of those whose general averages were from 75 to 79 per cent.
Without fear of contradiction, I think the Supreme Court, in the
exercise of its rule-making power conferred by the Constitution, may
pass a resolution amending section 14 of Rule 127 by reducing the
passing average to 70 per cent, effective several years before the date
of the resolution. Indeed, when this Court on July 15, 1948 allowed to
pass all candidates who obtained a general average of 69 per cent or
more and on April 28, 1949 those who obtained a general average of
70 per cent or more, irrespective of whether they filed petitions for
reconsideration, it in effect amended section 14 of Rule 127
retroactively, because during the examinations held in August 1947
and August 1948, said section (fixing the general average at 75 per
cent) was supposed to be in force. In stands to reason, if we are to
admit that the Supreme Court and the Congress have concurrent
power to regulate the admission to the practice of law, that the latter
may validly pass a retroactive rule fixing the passing general average.
Republic Act No. 972 cannot be assailed on the ground that it is
unreasonable, arbitrary or capricious, since this Court had already
adopted as passing averages 69 per cent for the 1947 bar
examinations and 70 per cent for the 1948 examinations. Anyway, we
should not inquire into the wisdom of the law, since this is a matter
that is addressed to the judgment of the legislators. This Court in
many instances had doubted the propriety of legislative enactments,
and yet it has consistently refrained from nullifying them solely on
that ground.
To say that the admission of the bar candidates benefited under
Republic Act 972 is against public interest, is to assume that the
matter of whether said Act is beneficial or harmful to the general
public was not considered by the Congress. As already stated, the
Congress held public hearings, and we are bound to assume that the
legislators, loyal, as do the members of this Court, to their oath of
office, had taken all the circumstances into account before passing the
Act. On the question of public interest I may observe that the
Congress, representing the people who elected them, should be more
qualified to make an appraisal. I am inclined to accept Republic Act
No. 972 as an expression of the will of the people through their duly
elected representatives.
I would, however, not go to the extent of admitting that the Congress,
in the exercise of its concurrent power to repeal, alter, or supplement
the Rules of Court regarding the admission to the practice of law, may
act in an arbitrary or capricious manner, in the same way that this
Court may not do so. We are thus left in the situation, incidental to a
democracy, where we can and should only hope that the right men are
put in the right places in our Government.
Wherefore, I hold that Republic Act No. 972 is constitutional and
should therefore be given effect in its entirety.
Separate Opinions
LABRADOR, J., concurring and dissenting:
The right to admit members to the Bar is, and has always been, the
exclusive privilege of this Court, because lawyers are members of the
Court and only this Court should be allowed to determine admission
thereto in the interest of the principle of the separation of powers. The
power to admit is judicial in the sense that discretion is used in is
exercise. This power should be distinguished from the power to
promulgate rules which regulate admission. It is only this power (to
promulgate amendments to the rules) that is given in the Constitution
to the Congress, not the exercise of the discretion to admit or not to
admit. Thus the rules on the holding of examination, the qualifications
of applicants, the passing grades, etc. are within the scope of the
legislative power. But the power to determine when a candidate has
made or has not made the required grade is judicial, and lies
completely with this Court.
I hold that the act under consideration is an exercise of the judicial
function, and lies beyond the scope of the congressional prerogative of
amending the rules. To say that candidates who obtain a general
average of 72 per cent in 1953, 73 per cent in 1954, and 74 per cent
in 1955 should be considered as having passed the examination, is to
mean exercise of the privilege and discretion judged in this Court. It is
a mandate to the tribunal to pass candidates for different years with
grades lower than the passing mark. No reasoning is necessary to
show that it is an arrogation of the Court's judicial authority and
discretion. It is furthermore objectionable as discriminatory. Why
should those taking the examinations in 1953, 1954 and 1955 be
allowed to have the privilege of a lower passing grade, while those
taking earlier or later are not?
I vote that the act in toto be declared unconstitutional, because it is
not embraced within the rule-making power of Congress, because it is
an undue interference with the power of this Court to admit members
thereof, and because it is discriminatory.
PARAS, C.J., dissenting:
Under section 145 of Rule of Court No. 127, in order that a bar
candidate "may be deemed to have passed his examinations
successfully, he must have obtained a general average of 75 per cent
in all subjects, without falling below 50 per cent in any subject.' This
passing mark has always been adhered to, with certain exception
presently to be specified.
With reference to the bar examinations given in August, 1946, the
original list of successful candidates included only those who obtained
a general average of 75 per cent or more. Upon motion for
reconsideration, however, 12 candidates with general averages
ranging from 72 to 73 per cent were raised to 75 per cent by resolution
of December 18, 1946. In the examinations of November, 1946 the list
first released containing the names of successful candidates covered
only those who obtained a general average of 75 per cent or more; but,
upon motion for reconsideration, 19 candidates with a general average
of 72 per cent were raised to 75 per cent by resolution of March 31,
1947. This would indicate that in the original list of successful
candidates those having a general average of 73 per cent or more but
below 75 per cent were included. After the original list of 1947
successful bar candidates had been released, and on motion for
reconsideration, all candidates with a general average of 69 per cent
were allowed to pass by resolution of July 15, 1948. With respect to
the bar examinations held in August, 1948, in addition to the original
list of successful bar candidates, all those who obtained a general
average of 70 per cent or more, irrespective of the grades in any one
subject and irrespective of whether they filed petitions for
reconsideration, were allowed to pass by resolution of April 28, 1949.
Thus, for the year 1947 the Court in effect made 69 per cent as the
passing average, and for the year 1948, 70 per cent; and this
amounted, without being noticed perhaps, to an amendment of section
14 of Rule 127.
Numerous flunkers in the bar examinations held subsequent to 1948,
whose general averages mostly ranged from 69 to 73 per cent, filed
motions for reconsideration invoking the precedents set by this Court
in 1947 and 1948, but said motions were uniformly denied.
In the year 1951, the Congress, after public hearings where law deans
and professors, practising attorneys, presidents of bar associations,
and law graduates appeared and argued lengthily pro or con, approved
a bill providing, among others, for the reduction of the passing general
average from 75 per cent to 70 per cent, retroactive to any bar
examination held after July 4, 1946. This bill was vetoed by the
President mainly in view of an unfavorable comment of Justices
Padilla, Tuason, Montemayor, Reyes, Bautista and Jugo. In 1953, the
Congress passed another bill similar to the previous bill vetoed by the
President, with the important difference that in the later bill the
provisions in the first bill regarding (1) the supervision and regulation
by the Supreme Court of the study of law, (2) the inclusion of Social
Legislation and Taxation as new bar subjects, (3) the publication of
the bar examiners before the holding of the examination, and (4) the
equal division among the examiners of all the admission fees paid by
bar applicants, were eliminated. This second bill was allowed to
become a law, Republic Act No. 972, by the President by merely not
signing it within the required period; and in doing so the President
gave due respect to the will of the Congress which, speaking for the
people, chose to repass the bill first vetoed by him.
Under Republic Act No. 972, any bar candidates who obtained a
general average of 70 per cent in any examinations after July 4, 1946
up to August 1951; 71 per cent in the 1952 bar examinations; 72 per
cent in 1953 bar examinations; 73 per cent in the 1954 bar
examinations; and 74 per cent in the 1955 bar examinations, without
obtaining a grade below 50 per cent in any subject, shall be allowed to
pass. Said Act also provides that any bar candidate who obtained a
grade of 75 per cent in any subject in any examination after July 4,
1946, shall be deemed to have passed in such subject or subjects and
such grade or grades shall be included in computing the passing in
any subsequent examinations.
Numerous candidates who had taken the bar examinations previous
to the approval of Republic Act No. 972 and failed to obtain the
necessary passing average, filed with this Court mass or separate
petitions, praying that they be admitted to the practice of law under
and by virtue of said Act, upon the allegation that they have obtained
the general averages prescribed therein. In virtue of the resolution of
July 6, 1953, this Court held on July 11, 1953 a hearing on said
petitions, and members of the bar, especially authorized
representatives of bar associations, were invited to argue or submit
memoranda as amici curiae, the reason alleged for said hearing being
that some doubt had "been expressed on the constitutionality of
Republic Act No. 972 in so far as it affects past bar examinations and
the matter" involved "a new question of public interest."
All discussions in support of the proposition that the power to regulate
the admission to the practice of law is inherently judicial, are
immaterial, because the subject is now governed by the Constitution
which in Article VII, section 13, provides as follows:
The Supreme Court shall have the power to promulgate rules
concerning pleading, practice, and procedure in all courts,
and the admission to the practice of law. Said rules shall be
uniform for all courts of the same grade and shall not
diminish, increase or modify substantive right. The existing
laws on pleading, practice, and procedure are hereby repealed
as statutes and are declared Rules of Court, subject to the
power of the Supreme Court to alter and modify the same. The
Congress shall have the power to repeal, alter, or supplement
the rules concerning pleading, practice, and procedure, and
the admission to the practice of law in the Philippines.
Under this constitutional provision, while the Supreme Court has the
power to promulgate rules concerning the admission to the practice of
law, the Congress has the power to repeal, alter or supplement said
rules. Little intelligence is necessary to see that the power of the
Supreme Court and the Congress to regulate the admission to the
practice of law is concurrent.
The opponents of Republic Act No. 972 argue that this Act, in so far
as it covers bar examinations held prior to its approval, is
unconstitutional, because it sets aside the final resolutions of the
Supreme Court refusing to admit to the practice of law the various
petitioners, thereby resulting in a legislative encroachment upon the
judicial power. In my opinion this view is erroneous. In the first place,
resolutions on the rejection of bar candidates do not have the finality
of decisions in justiciable cases where the Rules of Court expressly fix
certain periods after which they become executory and unalterable.
Resolutions on bar matters, specially on motions for reconsiderations
filed by flunkers in any give year, are subject to revision by this Court
at any time, regardless of the period within which the motion were
filed, and this has been the practice heretofore. The obvious reason is
that bar examinations and admission to the practice of law may be
deemed as a judicial function only because said matters happen to be
entrusted, under the Constitution and our Rules of Court, to the
Supreme Court. There is no judicial function involved, in the subject
and constitutional sense of the word, because bar examinations and
the admission to the practice of law, unlike justiciable cases, do not
affect opposing litigants. It is no more than the function of other
examining boards. In the second place, retroactive laws are not
prohibited by the Constitution, except only when they would be ex post
facto, would impair obligations and contracts or vested rights or would
deny due process and equal protection of the law. Republic Act No.
972 certainly is not an ex post facto enactment, does not impair any
obligation and contract or vested rights, and denies to no one the right
to due process and equal protection of the law. On the other hand, it
is a mere curative statute intended to correct certain obvious
inequalities arising from the adoption by this Court of different passing
general averages in certain years.
Neither can it be said that bar candidates prior to July 4, 1946, are
being discriminated against, because we no longer have any record of
those who might have failed before the war, apart from the
circumstance that 75 per cent had always been the passing mark
during said period. It may also be that there are no pre-war bar
candidates similarly situated as those benefited by Republic Act No.
972. At any rate, in the matter of classification, the reasonableness
must be determined by the legislative body. It is proper to recall that
the Congress held public hearings, and we can fairly suppose that the
classification adopted in the Act reflects good legislative judgment
derived from the facts and circumstances then brought out.
As regards the alleged interference in or encroachment upon the
judgment of this Court by the Legislative Department, it is sufficient
to state that, if there is any interference at all, it is one expressly
sanctioned by the Constitution. Besides, interference in judicial
adjudication prohibited by the Constitution is essentially aimed at
protecting rights of litigants that have already been vested or acquired
in virtue of decisions of courts, not merely for the empty purpose of
creating appearances of separation and equality among the three
branches of the Government. Republic Act No. 972 has not produced
a case involving two parties and decided by the Court in favor of one
and against the other. Needless to say, the statute will not affect the
previous resolutions passing bar candidates who had obtained the
general average prescribed by section 14 of Rule 127. A law would be
objectionable and unconstitutional if, for instance, it would provide
that those who have been admitted to the bar after July 4, 1946, whose
general average is below 80 per cent, will not be allowed to practice
law, because said statute would then destroy a right already acquired
under previous resolutions of this Court, namely, the bar admission
of those whose general averages were from 75 to 79 per cent.
Without fear of contradiction, I think the Supreme Court, in the
exercise of its rule-making power conferred by the Constitution, may
pass a resolution amending section 14 of Rule 127 by reducing the
passing average to 70 per cent, effective several years before the date
of the resolution. Indeed, when this Court on July 15, 1948 allowed to
pass all candidates who obtained a general average of 69 per cent or
more and on April 28, 1949 those who obtained a general average of
70 per cent or more, irrespective of whether they filed petitions for
reconsideration, it in effect amended section 14 of Rule 127
retroactively, because during the examinations held in August 1947
and August 1948, said section (fixing the general average at 75 per
cent) was supposed to be in force. In stands to reason, if we are to
admit that the Supreme Court and the Congress have concurrent
power to regulate the admission to the practice of law, that the latter
may validly pass a retroactive rule fixing the passing general average.
Republic Act No. 972 cannot be assailed on the ground that it is
unreasonable, arbitrary or capricious, since this Court had already
adopted as passing averages 69 per cent for the 1947 bar
examinations and 70 per cent for the 1948 examinations. Anyway, we
should not inquire into the wisdom of the law, since this is a matter
that is addressed to the judgment of the legislators. This Court in
many instances had doubted the propriety of legislative enactments,
and yet it has consistently refrained from nullifying them solely on
that ground.
To say that the admission of the bar candidates benefited under
Republic Act 972 is against public interest, is to assume that the
matter of whether said Act is beneficial or harmful to the general
public was not considered by the Congress. As already stated, the
Congress held public hearings, and we are bound to assume that the
legislators, loyal, as do the members of this Court, to their oath of
office, had taken all the circumstances into account before passing the
Act. On the question of public interest I may observe that the
Congress, representing the people who elected them, should be more
qualified to make an appraisal. I am inclined to accept Republic Act
No. 972 as an expression of the will of the people through their duly
elected representatives.
I would, however, not go to the extent of admitting that the Congress,
in the exercise of its concurrent power to repeal, alter, or supplement
the Rules of Court regarding the admission to the practice of law, may
act in an arbitrary or capricious manner, in the same way that this
Court may not do so. We are thus left in the situation, incidental to a
democracy, where we can and should only hope that the right men are
put in the right places in our Government.
Wherefore, I hold that Republic Act No. 972 is constitutional and
should therefore be given effect in its entirety.
[G.R. No. 100113. September 3, 1991.]
RENATO L. CAYETANO, Petitioner, v. CHRISTIAN MONSOD, HON.
JOVITO R. SALONGA, COMMISSION ON APPOINTMENTS, and
HON. GUILLERMO CARAGUE in his capacity as Secretary of Regrettably, however, there seems to be no jurisprudence as to what
Budget and Management, Respondents. constitutes practice of law as a legal qualification to an appointive
office.chanrobles virtual lawlibrary
Renato L. Cayetano for and in his own behalf.
Black defines "practice of law" as:jgc:chanrobles.com.ph
Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for
petitioner. "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
DECISION 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
PARAS, J.: 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
We are faced here with a controversy of far-reaching proportions While where he is held out to be an attorney, using a letterhead describing
ostensibly only legal issues are involved, the Court’s decision in this himself as an attorney, counseling clients in legal matters, negotiating
case would indubitably have a profound effect on the political aspect with opposing counsel about pending litigation, and fixing and
of our national existence. collecting fees for services rendered by his associate." (Black’s Law
Dictionary, 3rd ed.).
The 1987 Constitution provides in Section 1(1), Article IX-
C:jgc:chanrobles.com.ph 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.
"There shall be a Commission on Elections composed of a Chairman 650) A person is also considered to be in the practice of law when
and six Commissioners who shall be natural-born citizens of the he:jgc:chanrobles.com.ph
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 ". . . for valuable consideration engages in the business of advising
candidates for any elective position in the immediately preceding person, firms, associations or corporations as to their rights under the
elections. However, a majority thereof, including the Chairman, shall law, or appears in a representative capacity as an advocate in
be members of the Philippine Bar who have been engaged in the proceedings pending or prospective, before any court, commissioner,
practice of law for at least ten years." (Emphasis supplied) referee, board, body, committee, or commission constituted by law or
authorized to settle controversies and there, in such representative
The aforequoted provision is patterned after Section 1(1), Article XII-C capacity performs any act or acts for the purpose of obtaining or
of the 1973 Constitution which similarly defending the rights of their clients under the law. Otherwise stated,
provides:jgc:chanrobles.com.ph one who, in a representative capacity, engages in the business of
advising clients as to their rights under the law, or while so engaged
"There shall be an independent Commission on Elections composed of performs any act or acts either in court or outside of court for that
a Chairman and eight Commissioners who shall be natural-born purpose, is engaged in the practice of law." (State ex. rel. Mckittrick v.
citizens of the Philippines and, at the time of their appointment, at C.S. Dudley and Co., 102 S.W. 2d 895, 340 Mo. 852).
least thirty-five years of age and holders of a college degree. However,
a majority thereof, including the Chairman, shall be members of the This Court in the case of Philippine Lawyers Association v. Agrava,
Philippine Bar who have been engaged in the practice of law for al least (105 Phil. 173, 176-177) stated:jgc:chanrobles.com.ph
ten years." (Emphasis supplied)
"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)
"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 D. 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).

"Practice of law under modern conditions consists in no small part of The following records of the 1986 Constitutional Commission show
work performed outside of any court and having no immediate relation that it has adopted a liberal interpretation of the term "practice of
to proceedings in court. It embraces conveyancing, the giving of legal law." chanrobles virtual lawlibrary
advice on a large variety of subjects, and the preparation and
execution of legal instruments covering an extensive field of business "MR. FOZ. Before we suspend the session, may I make a manifestation
and trust relations and other affairs. Although these transactions may which I forgot to do during our review of the provisions on the
have no direct connection with court proceedings, they are always Commission on Audit. May I be allowed to make a very brief
subject to become involved in litigation. They require in many aspects statement?
a high degree of legal skill, a wide experience with men and affairs,
and great capacity for adaptation to difficult and complex situations. "THE PRESIDING OFFICER (Mr. Jamir).
These customary functions of an attorney or counselor at law bear an
intimate relation to the administration of justice by the courts. No The Commissioner will please proceed.
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 "MR. FOZ. This has to do with the qualifications of the members of the
involves appearance in court and that part which involves advice and Commission on Audit. Among others, the qualifications provided for
drafting of instruments in his office. It is of importance to the welfare by Section 1 is that ‘They must be Members of the Philippine Bar’ — I
of the public that these manifold customary functions be performed am quoting from the provision — ‘who have been engaged in the
by persons possessed of adequate learning and skill, of sound moral practice of law for at least ten years.’"
character, and acting at all times under the heavy trust obligations to
clients which rests upon all attorneys." (Moran, Comments on the "To avoid any misunderstanding which would result in excluding
Rules of Court, Vol. 3 [1953 ed.], p. 665-666, citing In re Opinion of members of the Bar who are now employed in the COA or Commission
the Justices [Mass.], 194 N.E. 313, quoted in Rhode Is. Bar Assoc. v. on Audit, we would like to make the clarification that this provision on
Automobile Service Assoc. [R.I.] 179 A. 139, 144). (Emphasis ours). qualifications regarding members of the Bar does not necessarily refer
or involve actual practice of law outside the COA. We have to interpret
The University of the Philippines Law Center in conducting orientation this to mean that as long as the lawyers who are employed in the COA
briefing for new lawyers (1974-1975) listed the dimensions of the are using their legal knowledge or legal talent in their respective work
practice of law in even broader terms as advocacy, counseling and within COA, then they are qualified to be considered for appointment
public service. as members or commissioners, even chairman, of the Commission on
Audit. Opportunities in Law Careers [VGM Career Horizons: Illinois), 1986],
p. 15]).
"This has been discussed by the Committee on Constitutional
Commissions and Agencies and we deem it important to take it up on At this point, it might be helpful to define private practice. The term,
the floor so that this interpretation may be made available whenever as commonly understood, means "an individual or organization
this provision on the qualifications as regards members of the engaged in the business of delivering legal services." (Ibid.). Lawyers
Philippine Bar engaging in the practice of law for at least ten years is who practice alone are often called "sole practitioners." Groups of
taken up. lawyers are called "firms." The firm is usually a partnership and
members of the firm are the partners. Some firms may be organized
"MR. OPLE. Will Commissioner Foz yield to just one question. as professional corporations and the members called shareholders. In
either case, the members of the firm are the experienced attorneys. In
"MR. FOZ. Yes, Mr. Presiding Officer. most firms, there are younger or more inexperienced salaried
attorneys called "associates." (Ibid.).
"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 test that defines law practice by looking to traditional areas of law
the Article on the Commission on Audit?" practice is essentially tautologies, unhelpful defining the practice of
law as that which lawyers do. (Charles W. Wolfram, Modern Legal
MR. FOZ. We must consider the fact that the work of COA although it Ethics [West Publishing Co.: Minnesota, 1986], p. 593). The practice
is auditing, will necessarily involve legal work; it will involve legal work. of law is defined as "the performance of any acts . . . in or out of court,
And, therefore, lawyers who are employed in COA now would have the commonly understood to be the practice of law. (State Bar Ass’n v.
necessary qualifications in accordance with the provision on Connecticut Bank & Trust Co., 145 Conn. 222, 140 A. 2d 863, 870
qualifications under our provisions on the Commission on Audit. And, [1958] [quoting Grievance Comm. v. Payne, 128 Conn. 325, 22 A. 2d
therefore, the answer is yes. 623, 626 [1941]). Because lawyers perform almost every function
known in the commercial and governmental realm, such a definition
"MR. OPLE. Yes. So that the construction given to this is that this is would obviously be too global to be workable. (Wolfram, op. cit.)
equivalent to the practice of law.
The appearance of a lawyer in litigation in behalf of a client is at once
"MR. FOZ. Yes, Mr. Presiding Officer. the most publicly familiar role for lawyers as well as an uncommon
role for the average lawyer. Most lawyers spend little time in
"MR. OPLE. Thank you."cralaw virtua1aw library courtrooms, and a large percentage spend their entire practice without
litigating a case. (Ibid., p. 593). Nonetheless, many lawyers do
. . . (Emphasis supplied) continue to litigate and the litigating lawyer’s role colors much of both
the public image and the self-perception of the legal profession.
Section 1(1), Article IX-D of the 1987 Constitution, provides, among (Ibid.).chanrobles.com:cralaw:red
others, that the Chairman and two Commissioners of the Commission
on Audit (COA) should either be certified public accountants with not In this regard thus, the dominance of litigation in the public mind
less than ten years of auditing practice, or members of the Philippine reflects history, not reality. (Ibid.). Why is this so? Recall that the late
Bar who have been engaged in the practice of law for at least ten years. Alexander Sycip, a corporate lawyer, once articulated on the
(Emphasis supplied) importance of a lawyer as a business counselor in this wise: "Even
today, there are still uninformed laymen whose concept of an attorney
Corollary to this is the term "private practitioner" and which is in many is one who principally tries cases before the courts. The members of
ways synonymous with the word "lawyer." Today, although many the bench and bar and the informed laymen such as businessmen,
lawyers do not engage in private practice, it is still a fact that the know that in most developed societies today, substantially more legal
majority of lawyers are private practitioners. (Gary Munneke, 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 describe[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 will
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 will 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 contexts 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.chanrobles
virtualawlibrary chanrobles.com:chanrobles.com.ph
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 organization. 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, this 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 skills 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 modern corporate
lawyer has gained a new role as a stockholder — 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:chanrob1es virtual 1aw library
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 systems 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 kinds 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:chanrob1es virtual 1aw library
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.chanrobles lawlibrary : rednad
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 make-up of the
modern 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," Jar. 11, 1989, p.
4).chanrobles law library : red
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 quasi-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 re negotiation policies, demand expertise in the law of
contracts, in legislation and agreement drafting and in re negotiation.
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 complete 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:chanrobles.com : virtual law library
"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:jgc:chanrobles.com.ph
"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:jgc:chanrobles.com.ph
"The Chairman and the Commissioners shall be appointed by the
President with the consent of the Commission on Appointments for a
term of seven years without re appointment. 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 re appointment.
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."cralaw virtua1aw library
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 practiced 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
practicing law for over ten years. This is different from the acts of
persons practicing 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:chanrob1es virtual 1aw library
The Commission on the basis of evidence submitted during 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.chanrobles lawlibrary :
rednad
Additionally, consider the following:chanrob1es virtual 1aw library
(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:jgc:chanrobles.com.ph
"We must interpret not by the letter that killeth, but by the spirit that Monsod as Chairman of the Commission on Elections should, on the
giveth life."cralaw virtua1aw library basis of his stated qualifications and after due assessment thereof, be
confirmed — was attended by error so gross as to amount to grave
Take this hypothetical case of Samson and Delilah. Once, the abuse of discretion and consequently merits nullification by this Court
procurator of Judea asked Delilah (who was Samson’s beloved) for in accordance with the second paragraph of Section 1, Article VIII of
help in capturing Samson. Delilah agreed on condition that — the Constitution. I therefore vote to DENY the petition.

"No blade shall touch his skin; PADILLA, J., dissenting:chanrob1es virtual 1aw library

No blood shall flow from his veins."cralaw virtua1aw library
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.
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.

Fernan, C.J., Griño-Aquino and Medialdea, JJ., concur. After considering carefully respondent Monsod’s comment, I am even
more convinced that the constitutional requirement of" practice of low
Melencio-Herrera, J., concurs in the result. for at least ten (10) years" has not been met.

Feliciano, J., I certify that he voted to dismiss the petition. The procedural barriers interposed by respondents deserve scant
(Fernan, C.J.). consideration because, ultimately, the core issue to be resolved in this
petition is the proper construal of the constitutional provision
Sarmiento, J., is on leave. requiring a majority of the membership of COMELEC, including the
Chairman thereof to "have been engaged in the practice of law for at
Regalado and Davide, Jr., JJ., took no part. least ten (10) years." (Art IX(C), Section 1(1), 1987 Constitution).
Questions involving the construction of constitutional provisions are
Separate Opinions 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
NARVASA, J., concurring:chanrob1es virtual 1aw library and defining constitutional boundaries."cralaw virtua1aw library

I concur with the decision of the majority written by Mr. Justice Paras, The Constitution has imposed clear and specific standards for a
albeit only in the result; it does not appear to me that there has been COMELEC Chairman. Among these are that he must have been
an adequate showing that the challenged determination by the "engaged in the practice of law for at least ten (10) years." It is the
Commission on Appointments — that the appointment of respondent bounded 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 v. 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 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 (State v. 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:jgc:chanrobles.com.ph
"1. Habituality. The term ‘practice of law’ implies customarily or
habitually holding one’s self out to the public as a lawyer (People v.
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:chanrob1es virtual 1aw
library
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 v.
Villanueva: 4
"Essentially, the word private 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 a compensation, as a source of his livelihood or in
consideration of his said services."cralaw virtua1aw library
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:chanrob1es virtual 1aw library
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 his viewpoint.
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.chanrobles virtual lawlibrary
In Luego, which is cited in the ponencia, what was involved was the
discretion of the appointing authority to choose between two claimants
to the same office who both possessed the required qualifications. It
was that kind of discretion that we said could not be reviewed.
If a person elected by no less than the sovereign people may be ousted
by this Court for lack of the required qualifications, I see no reason
why we cannot disqualify 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."cralaw virtua1aw library
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."cralaw virtua1aw library
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:chanrob1es virtual 1aw library
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.chanrobles law library
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?
6. 1978-1986: Guevent Group of Companies Chief Executive Officer
The Constitution uses the phrase "engaged in the practice of law for
at least ten years." The deliberate choice of words shows that the 7. 1986-1987: Philippine Constitutional Commission — Member
practice envisioned is active and regular, not isolated, occasional,
accidental, intermittent, incidental, seasonal, or extemporaneous. To 8. 1989-1991: The Fact-Finding Commission on the December 1989
be "engaged" in an activity for ten years requires committed Coup Attempt — Member
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 9. Presently: Chairman of the Board and Chief Executive Officer of the
obliged or pledged to carry it out with intent and attention during the following companies:chanrob1es virtual 1aw library
ten-year period.
a. ACE Container Philippines, Inc.
I agree with the petitioner that based on the bio-data submitted by
respondent Monsod to the Commission on Appointments, the latter b. Dataprep, Philippines
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 c. Philippine SUN systems Products, Inc.
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 d. Semirara Coal Corporation
been extremely limited because he was also working for M.A. and Ph.
D. degrees in Economics at the University of Pennsylvania during that e. CBL Timber Corporation
period. How could he practice law in the United States while not a
member of the Bar there? Member of the Board of the Following:chanrob1es virtual 1aw library

The professional life of the respondent follows:jgc:chanrobles.com.ph a. Engineering Construction Corporation of the Philippines

"1.15.1 Respondent Monsod’s activities since his passing the Bar b. First Philippine Energy Corporation
examinations in 1961 consist of the following:chanrob1es virtual 1aw
library c. First Philippine Holdings Corporation

1. 1961-1963: M.A. in Economics (Ph. D. candidate), University of d. First Philippine Industrial Corporation
Pennsylvania
e. Graphic Atelier
2. 1963-1970: World Bank Group — Economist, Industry Department;
Operations, Latin American Department; Division Chief, South Asia f. Manila Electric Company
and Middle East, International Finance Corporation
g. Philippine Commercial Capital, Inc.
3. 1970-1973: Meralco Group Executive of various companies, i.e.,
Meralco Securities Corporation, Philippine Petroleum Corporation, h. Philippine Electric Corporation
Philippine Electric Corporation
i. Tarlac Reforestation and Environment Enterprises
4. 1973-1976: Yujuico Group — President, Fil-Capital Development
Corporation and affiliated companies j. Tolong Aquaculture Corporation

5. 1976-1978: Finaciera Manila — Chief Executive Officer 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 law enough 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 legal advice of legal services, he was
the one receiving that advice 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.chanrobles lawlibrary : rednad
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:jgc:chanrobles.com.ph
"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 III. 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
III. 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:chanrob1es virtual 1aw library
x x x
"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-mine 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.’
x x x
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
x x x wit:jgc:chanrobles.com.ph
". . . 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
‘attorneys 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 gaining;
. . . 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]):chanroblesvirtualawlibrary
x x x of law, doing business also should be active and continuous. Isolated
". . . 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
"1. Habituality. The term ‘practice of law’ implies customarily or
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
log citing State v. Cotner, 127, p. 1, 87 Kan, 864)." (Rollo, p. 115).
x x x
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
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, imprisonment for a period ranging from two (2) years, four (4) months
competence, integrity, and dedication, to qualify for such high offices and one (1) day to four (4) years.
as President, Vice-President, Senator, Congressman or Governor but
the Constitution in prescribing the specific qualification of having Eleven (11) days later, Mr. Argosino and his colleagues filed an
engaged in the practice of law for at least ten (10) years for the position application for probation with the lower court. The application for
of COMELEC Chairman has ordered that he may not be confirmed for probation was granted in an Order dated 18 June 1993 issued by
that office. The Constitution charges the public respondents no less Regional Trial Court Judge Pedro T. Santiago. The period of probation
than this Court to obey its mandate. was set at two (2) years, counted from the probationer's initial report
to the probation officer assigned to supervise him.
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. Less than a month later, on 13 July 1993, Mr. Argosino filed a Petition
for Admission to Take the 1993 Bar Examinations. In this Petition, he
I vote to GRANT the petition. disclosed the fact of his criminal conviction and his then probation
status. He was allowed to take the 1993 Bar Examinations in this
Bidin, J., dissents. Court's En Banc Resolution dated 14 August 1993.1 He passed the
Bar Examination. He was not, however, allowed to take the lawyer's
oath of office.

B.M. No. 712 July 13, 1995

On 15 April 1994, Mr. Argosino filed a Petition with this Court to allow
him to take the attorney's oath of office and to admit him to the
IN THE MATTER OF THE ADMISSION TO THE BAR AND OATH- practice of law, averring that Judge Pedro T. Santiago had terminated
TAKING OF SUCCESSFUL BAR APPLICANT AL C. his probation period by virtue of an Order dated 11 April 1994. We
ARGOSINO, petitioner. note that his probation period did not last for more than ten (10)
months from the time of the Order of Judge Santiago granting him
RESOLUTION probation dated 18 June 1993. Since then, Mr. Argosino has filed
three (3) Motions for Early Resolution of his Petition for Admission to
the Bar.

FELICIANO, J.:
A criminal information was filed on 4 February 1992 with the Regional
Trial Court of Quezon City, Branch 101, charging Mr. A.C. Argosino
along with thirteen (13) other individuals, with the crime of homicide
in connection with the death of one Raul Camaligan on 8 September
1991. The death of Raul Camaligan stemmed from the infliction of
severe physical injuries upon him in the course of "hazing" conducted
as part of university fraternity initiation rites. Mr. Argosino and his co-
The practice of law is not a natural, absolute or constitutional right to
be granted to everyone who demands it. Rather, it is a
high personal privilege limited to citizens of good moral character, with
special educational qualifications, duly ascertained and certified.2 The
essentiality of good moral character in those who would be lawyers is
stressed in the following excerpts which we quote with approval and
which we regard as having persuasive effect:
In Re Farmer: 3

accused then entered into plea bargaining with the prosecution and
as a result of such bargaining, pleaded guilty to the lesser offense of
homicide through reckless imprudence. This plea was accepted by the
trial court. In a judgment dated 11 February 1993, each of the
fourteen (14) accused individuals was sentenced to suffer
xxx xxx xxx
This "upright character" prescribed by the statute, as
a condition precedent to the applicant's right to
receive a license to practice law in North Carolina, and
of which he must, in addition to other requisites,
satisfy the court, includes all the elements necessary
to make up such a character. It is something more
than an absence of bad character. It is the good name
which the applicant has acquired, or should have
acquired, through association with his fellows. It
means that he must have conducted himself as a man
of upright character ordinarily would, or should, or
does. Such character expresses itself, not in negatives
nor in following the line of least resistance, but quite
often, in the will to do the unpleasant thing if it is
right, and the resolve not to do the pleasant thing if it
is wrong. . . .
xxx xxx xxx
And we may pause to say that this requirement of the
statute is eminently proper. Consider for a moment
the duties of a lawyer. He is sought as counsellor, and
his advice comes home, in its ultimate effect, to every
man's fireside. Vast interests are committed to his
care; he is the recipient of unbounded trust and
confidence; he deals with is client's
property, reputation, his life, his all. An attorney at
law is a sworn officer of the Court, whose chief
concern, as such, is to aid the administration of
justice. . . .
xxx xxx xxx4
In Re Application of Kaufman,5
citing Re Law
Examination of 1926 (1926) 191 Wis 359, 210 NW
710:
It can also be truthfully said that there exists nowhere
greater temptations to deviate from the straight and
narrow path than in the multiplicity of circumstances
that arise in the practice of profession. For these
reasons the wisdom of requiring an applicant for
admission to the bar to possess a high moral standard
therefore becomes clearly apparent, and the board of
bar examiners as an arm of the court, is required to
cause a minute examination to be made of the moral
standard of each candidate for admission to practice.
. . . It needs no further argument, therefore, to arrive
at the conclusion that the highest degree of scrutiny
must be exercised as to the moral character of a
candidate who presents himself for admission to the
bar. The evil must, if possible, be successfully met at
its very source, and prevented, for, after a lawyer has
once been admitted, and has pursued his profession,
and has established himself therein, a far more
difficult situation is presented to the court when
proceedings are instituted for disbarment and for the
recalling and annulment of his license.
In Re Keenan:6
The right to practice law is not one of the inherent rights
of every citizen, as in the right to carry on an ordinary
trade or business. It is a peculiar privilege granted and
continued only to those who demonstrate special
fitness in intellectual attainment and in moral
character. All may aspire to it on an absolutely equal
basis, but not all will attain it. Elaborate machinery
has been set up to test applicants by standards fair
to all and to separate the fit from the unfit. Only those
who pass the test are allowed to enter the profession,
and only those who maintain the standards are
allowed to remain in it.
Re Rouss:7
Membership in the bar is a privilege burdened with
conditions, and a fair private and professional
character is one of them; to refuse admission to an
unworthy applicant is not to punish him for past
offense: an examination into character, like the
examination into learning, is merely a test of fitness.
Cobb vs. Judge of Superior Court:8
 Attorney's are licensed because of their learning and
ability, so that they may not only protect the rights
and interests of their clients, but be able to assist
court in the trial of the cause. Yet what protection to
clients or assistance to courts could such agents give?
They are required to be of good moral character, so
that the agents and officers of the court, which they
are, may not bring discredit upon the due
administration of the law, and it is of the highest
possible consequence that both those who have not
such qualifications in the first instance, or who, having
had them, have fallen therefrom, shall not be
permitted to appear in courts to aid in the
administration of justice.
It has also been stressed that the requirement of good moral character
is, in fact, of greater importance so far as the general public and the
proper administration of justice are concerned, than the possession of
legal learning:
. . . (In re Applicants for License, 55 S.E. 635, 143
N.C. 1, 10 L.R.A. [N.S.] 288, 10 Ann./Cas. 187):
The public policy of our state has
always been to admit no person to
the practice of the law unless he
covered an upright moral
character. The possession of this by
the attorney is more important, if
anything, to the public and to the
proper administration of justice than
legal learning. Legal learning may be
acquired in after years, but if the
applicant passes the threshold of the
bar with a bad moral character the
chances are that his character will
remain bad, and that he will become
a disgrace instead of an ornament to
his great calling — a curse instead of
a benefit to his community — a Quirk,
a Gammon or a Snap, instead of a
Davis, a Smith or a Ruffin.9
All aspects of moral character and behavior may be inquired into in
respect of those seeking admission to the Bar. The scope of such
inquiry is, indeed, said to be properly broader than inquiry into the
moral proceedings for disbarment:
Re Stepsay: 10
The inquiry as to the moral character of an attorney
in a proceeding for his admission to practice
is broader in scope than in a disbarment proceeding.
Re Wells: 11
. . . that an applicant's contention that upon
application for admission to the California Bar the
court cannot reject him for want of good moral
character unless it appears that he has been guilty of
acts which would be cause for his disbarment or
suspension, could not be sustained; that the inquiry
is broader in its scope than that in a disbarment
proceeding, and the court may receive any evidence
which tends to show the applicant's character as
respects honesty, integrity, and general
morality, and may no doubt refuse admission upon
proofs that might not establish his guilt of any of the
acts declared to be causes for disbarment.
The requirement of good moral character to be satisfied by those who
would seek admission to the bar must of necessity be more stringent
than the norm of conduct expected from members of the general
public. There is a very real need to prevent a general perception that
entry into the legal profession is open to individuals with inadequate
moral qualifications. The growth of such a perception would signal the
progressive destruction of our people's confidence in their courts of
law and in our legal system as we know it.12
Mr. Argosino's participation in the deplorable "hazing" activities
certainly fell far short of the required standard of good moral
character. The deliberate (rather than merely accidental or
inadvertent) infliction of severe physical injuries which proximately led
to the death of the unfortunate Raul Camaligan, certainly indicated
serious character flaws on the part of those who inflicted such injuries.
Mr. Argosino and his co-accused had failed to discharge their moral Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero and Melo, JJ.,
duty to protect the life and well-being of a "neophyte" who had, by concur.
seeking admission to the fraternity involved, reposed trust and
confidence in all of them that, at the very least, he would not be beaten Bellosillo, J. is on leave.
and kicked to death like a useless stray dog. Thus, participation in the
prolonged and mindless physical beatings inflicted upon Raul
Camaligan constituted evident rejection of that moral duty and was
totally irresponsible behavior, which makes impossible a finding that
the participant was then possessed of good moral character. Republic of the Philippines
SUPREME COURT
Now that the original period of probation granted by the trial court has Manila
expired, the Court is prepared to consider de novo the question of
whether applicant A.C. Argosino has purged himself of the obvious SPECIAL SECOND DIVISION
deficiency in moral character referred to above. We stress that good
moral character is a requirement possession of which must be G.R. No. 151258 December 1, 2014
demonstrated not only at the time of application for permission to take
the bar examinations but also, and more importantly, at the time of
application for admission to the bar and to take the attorney's oath of ARTEMIO VILLAREAL, Petitioner,
office. vs.
PEOPLE OF THE PHILIPPINES, Respondent.

Mr. Argosino must, therefore, submit to this Court, for its examination
and consideration, evidence that he may be now regarded as x-----------------------x
complying with the requirement of good moral character imposed
upon those seeking admission to the bar. His evidence may G.R. No. 154954
consist, inter alia, of sworn certifications from responsible members of
the community who have a good reputation for truth and who PEOPLE OF THE PHILIPPINES, Petitioner,
have actually known Mr. Argosino for a significant period of time, vs.
particularly since the judgment of conviction was rendered by Judge THE HONORABLE COURT OF APPEALS, ANTONIO MARIANO
Santiago. He should show to the Court how he has tried to make up ALMEDA, DALMACIO LIM, JR., JUNEL ANTHONY AMA, ERNESTO
for the senseless killing of a helpless student to the family of the JOSE MONTECILLO, VINCENT TECSON, ANTONIO GENERAL,
deceased student and to the community at large. Mr. Argosino must, SANTIAGO RANADA III, NELSON VICTORINO, JAIME MARIA
in other words, submit relevant evidence to show that he is a different FLORES II, ZOSIMO MENDOZA, MICHAEL MUSNGI, VICENTE
person now, that he has become morally fit for admission to the VERDADERO, ETIENNE GUERRERO, JUDE FERNANDEZ, AMANTE
ancient and learned profession of the law. PURISIMA II, EULOGIO SABBAN, PERCIVAL D. BRIGOLA, PAUL
ANGELO SANTOS, JONAS KARL B. PEREZ, RENATO BANTUG, JR.,
Finally, Mr. Argosino is hereby DIRECTED to inform this Court, by ADEL ABAS, JOSEPH LLEDO, and RONAN DE
appropriate written manifestation, of the names and addresses of the GUZMAN, Respondents.
father and mother (in default thereof, brothers and sisters, if any, of
Raul Camaligan), within ten (10) day from notice hereof. Let a copy of x-----------------------x
this Resolution be furnished to the parents or brothers and sisters, if
any, of Raul Camaligan.
G.R. No. 155101
FIDELITO DIZON, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
x-----------------------x
G.R. Nos. 178057 & 178080
GERARDA H. VILLA, Petitioner,
vs.
MANUEL LORENZO ESCALONA II, MARCUS JOEL CAPELLAN
RAMOS, CRISANTO CRUZ SARUCA, JR., and ANSELMO
ADRIANO, Respondents.
RESOLUTION
SERENO, CJ:
We are asked to revisit our Decision in the case involving the death of
Leonardo "Lenny" Villa due to fraternity hazing. While there is nothing
new in the arguments raised by the parties in their respective Motions
for Clarification or Reconsideration, we find a few remaining matters
needing to be clarified and resobed. Sorne oJ' these matters include
the effect of our Decision on the finality of the Court of Appeals
judgments insofar as respondents Antonio Mariano A!meda (Almeda),
June] Anthony D. Arna (Arna), Renato Bantug, Jr. (Bantug), and
Vincent Tecson (Tecson) are concerned; the question of who are eligible
to seek probation; and the issue of the validity of the probation
proceedings and the concomitant orders of a court that allegedly had
no jurisdiction over the case.
Before the Court are the respective Motions for Reconsideration or
Clarification filed by petitioners People of the Philippines, through the
Office of the Solicitor General (OSG), and Gerarda H. Villa (Villa); and
by respondents Almeda, Ama, Bantug, and Tecson (collectively,
Tecson et al.) concerning the Decision of this Court dated 1 February
2012.1 The Court modified the assailed judgments2 of the Court of
Appeals (CA) in CA-G.R. CR No. 15520 and found respondents Fidelito
Dizon (Dizon), Almeda, Ama, Bantug, and Tecson guilty beyond
reasonable doubt of the crime of reckless imprudence resulting in
homicide. The modification had the effect of lowering the criminal
liability of Dizon from the crime of homicide, while aggravating the
verdict against Tecson et al. from slight physical injuries. The CA
Decision itself had modified the Decision of the Caloocan City Regional
Trial Court (RTC) Branch 121 finding all of the accused therein guilty
of the crime of homicide.3
Also, we upheld another CA Decision4 in a separate but related case
docketed as CA-G.R. S.P. Nos. 89060 & 90153 and ruled that the CA
did not commit grave abuse of discretion when it dismissed the
criminal case against Manuel Escalona II (Escalona), Marcus Joel
Ramos (Ramos), Crisanto Saruca, Jr. (Saruca), and Anselmo Adriano
(Adriano) on the ground that their right to speedy trial was violated.
Reproduced below is the dispositive portion of our Decision:5
WHEREFORE, the appealed Judgmentin G.R. No. 155101 finding
petitioner Fidelito Dizon guilty of homicide is hereby MODIFIED and
SET ASIDE IN PART. The appealed Judgment in G.R. No. 154954 –
finding Antonio Mariano Almeda, Junel Anthony Ama, Renato Bantug,
Jr., and Vincent Tecson guilty of the crime of slight physical injuries –
is also MODIFIED and SET ASIDE IN PART. Instead, Fidelito Dizon,
Antonio Mariano Almeda, Junel Anthony Ama, Renato Bantug, Jr.,
and Vincent Tecson are found GUILTY beyond reasonable doubt of
reckless imprudence resulting in homicide defined and penalized
under Article 365 in relation to Article 249 of the Revised Penal Code.
They are hereby sentenced to suffer an indeterminate prison term of
four (4) months and one (1) day of arresto mayor, as minimum, to four
(4) years and two (2) months of prision correccional, as maximum. In
addition, accused are ORDERED jointly and severally to pay the heirs
of Lenny Villa civil indemnity ex delicto in the amount of 50,000, and
moral damages in the amount of 1,000,000, plus legal interest on all
damages awarded at the rate of 12% from the date of the finality of
this Decision until satisfaction. Costs de oficio.
The appealed Judgment in G.R. No. 154954, acquitting Victorino et
al., is hereby AFFIRMED. The appealed Judgments in G.R. Nos.
178057 & 178080, dismissing the criminal case filed against
Escalona, Ramos, Saruca, and Adriano, are likewise AFFIRMED.
Finally, pursuant to Article 89(1) of the Revised Penal Code, the
Petition in G.R. No. 151258 is hereby dismissed, and the criminal case
against Artemio Villareal deemed CLOSED and TERMINATED.
Let copies of this Decision be furnished to the Senate President and
the Speaker of the House of Representatives for possible consideration
of the amendment of the Anti-Hazing Law to include the fact of
intoxication and the presence of non-resident or alumni fraternity
members during hazing as aggravating circumstances that would
increase the applicable penalties.
SO ORDERED.
To refresh our memories, we quote the factual antecedents
surrounding the present case:6
In February 1991, seven freshmen law students of the Ateneo de
Manila University School of Law signified their intention to join the
Aquila Legis Juris Fraternity (Aquila Fraternity). They were Caesar
"Bogs" Asuncion, Samuel "Sam" Belleza, Bienvenido "Bien" Marquez
III, Roberto Francis "Bert" Navera, Geronimo "Randy" Recinto, Felix
Sy, Jr., and Leonardo "Lenny" Villa (neophytes).
On the night of 8 February 1991, the neophytes were met by some
members of the Aquila Fraternity (Aquilans) at the lobby of the Ateneo
Law School. They all proceeded to Rufo’s Restaurant to have dinner.
Afterwards, they went to the house of Michael Musngi, also an
Aquilan, who briefed the neophytes on what to expect during the
initiation rites. The latter were informed that there would be physical
beatings, and that they could quit at any time. Their initiation rites
were scheduled to last for three days. After their "briefing," they were
brought to the Almeda Compound in Caloocan City for the
commencement of their initiation.
Even before the neophytes got off the van, they had already received
threats and insults from the Aquilans. As soon as the neophytes
alighted from the van and walked towards the pelota court of the
Almeda compound, some of the Aquilans delivered physical blows to
them. The neophytes were then subjected to traditional forms of
Aquilan "initiation rites." These rites included the "Indian Run," which
required the neophytes to run a gauntlet of two parallel rows of
Aquilans, each row delivering blows to the neophytes; the "Bicol
Express," which obliged the neophytes to sit on the floor with their
backs against the wall and their legs outstretched while the Aquilans
walked, jumped, or ran over their legs; the "Rounds," in which the
neophytes were held at the back of their pants by the "auxiliaries" (the
Aquilans charged with the duty of lending assistance to neophytes
during initiation rites), while the latter were being hit with fist blows
on their arms or withknee blows on their thighs by two Aquilans; and
the "Auxies’ Privilege Round," in which the auxiliaries were given the
opportunity to inflict physical pain on the neophytes. During this time,
the neophytes were also indoctrinated with the fraternity principles.
They survived their first day of initiation.
On the morning of their second day – 9 February 1991 – the neophytes
were made to present comic plays and to play rough basketball. They
were also required to memorize and recite the Aquila Fraternity’s
principles. Whenever they would give a wrong answer, they would be
hit on their arms or legs. Late in the afternoon, the Aquilans revived
the initiation rites proper and proceeded to torment them physically
and psychologically. The neophytes were subjected to the same
manner of hazing that they endured on the first day of initiation. After
a few hours, the initiation for the day officially ended.
After a while, accused non-resident or alumni fraternity members
Fidelito Dizon (Dizon) and Artemio Villareal (Villareal) demanded that
the rites be reopened. The head of initiation rites, Nelson Victorino
(Victorino), initially refused. Upon the insistence of Dizon and
Villareal, however, he reopened the initiation rites. The fraternity
members, including Dizon and Villareal, then subjected the neophytes
to "paddling" and to additional rounds of physical pain. Lenny received
several paddle blows, one of which was so strong it sent him sprawling
to the ground. The neophytes heard him complaining of intense pain
and difficulty in breathing. After their last session of physical beatings,
Lenny could no longer walk. He had to be carried by the auxiliaries to
the carport. Again, the initiation for the day was officially ended, and
the neophytes started eating dinner. They then slept at the carport.
After an hour of sleep, the neophytes were suddenly roused by Lenny’s
shivering and incoherent mumblings.1avvphi1 Initially, Villareal and
Dizon dismissed these rumblings, as they thought he was just
overacting. When they realized, though, that Lenny was really feeling
cold, some of the Aquilans started helping him. They removed his
clothes and helped him through a sleeping bag to keep him warm.
When his condition worsened, the Aquilans rushed him to the
hospital. Lenny was pronounced dead on arrival.
Consequently, a criminal case for homicide was filed against the
following 35 Aquilans:
In Criminal Case No. C-38340(91) 19. Ernesto Jose Montecillo (Montecillo)

1. Fidelito Dizon (Dizon) 20. Santiago Ranada III (Ranada)

2. Artemio Villareal (Villareal) 21. Zosimo Mendoza (Mendoza)

3. Efren de Leon (De Leon) 22. Vicente Verdadero (Verdadero)

4. Vincent Tecson (Tecson) 23. Amante Purisima II (Purisima)

5. Junel Anthony Ama (Ama) 24. Jude Fernandez (J. Fernandez)

6. Antonio Mariano Almeda (Almeda) 25. Adel Abas (Abas)

7. Renato Bantug, Jr. (Bantug) 26. Percival Brigola (Brigola)

8. Nelson Victorino (Victorino) In Criminal Case No. C-38340

9. Eulogio Sabban (Sabban) 1. Manuel Escalona II (Escalona)

10. Joseph Lledo (Lledo) 2. Crisanto Saruca, Jr. (Saruca)

11. Etienne Guerrero (Guerrero) 3. Anselmo Adriano (Adriano)

12. Michael Musngi (Musngi) 4. Marcus Joel Ramos (Ramos)

13. Jonas Karl Perez (Perez) 5. Reynaldo Concepcion (Concepcion)

14. Paul Angelo Santos (Santos) 6. Florentino Ampil (Ampil)

15. Ronan de Guzman (De Guzman) 7. Enrico de Vera III (De Vera)

16. Antonio General (General) 8. Stanley Fernandez (S. Fernandez)

17. Jaime Maria Flores II (Flores) 9. Noel Cabangon (Cabangon)

18. Dalmacio Lim, Jr. (Lim) Twenty-six of the accused Aquilans in Criminal Case No. C-38340(91)
were jointly tried. On the other hand, the trial against the remaining
nine accused in Criminal Case No. C-38340 was held in abeyance due
to certain matters that had to be resolved first.
On 8 November 1993, the trial court rendered judgment in Criminal
Case No. C-38340(91), holding the 26 accused guilty beyond
reasonable doubt of the crime of homicide, penalized with reclusion
temporal under Article 249 of the Revised Penal Code. A few weeks
after the trial court rendered its judgment, or on 29 November 1993,
Criminal Case No. C-38340 against the remaining nine accused
commenced anew.
On 10 January 2002, the CAin (CA-G.R. No. 15520) set aside the
finding of conspiracy by the trial court in Criminal Case No. C-
38340(91) and modified the criminal liability of each of the accused
according to individual participation. Accused De Leon had by then
passed away, so the following Decision applied only to the remaining
25 accused, viz:
1. Nineteen of the accused-appellants– Victorino, Sabban,
Lledo, Guerrero, Musngi, Perez, De Guzman, Santos, General,
Flores, Lim, Montecillo, Ranada, Mendoza, Verdadero,
Purisima, Fernandez, Abas, and Brigola (Victorino et al.) –
were acquitted,as their individual guilt was not established by
proof beyond reasonable doubt.
2. Four of the accused-appellants– Vincent Tecson, Junel
Anthony Ama, Antonio Mariano Almeda, and Renato Bantug,
Jr. (Tecson et al.) – were found guilty of the crime of slight
physical injuriesand sentenced to 20 days of arresto menor.
They were also ordered to jointly pay the heirs of the victim
the sum of ₱30,000 as indemnity.
3. Two of the accused-appellants– Fidelito Dizonand Artemio
Villareal– were found guilty beyond reasonable doubt of the
crime of homicide under Article 249 of the Revised Penal Code.
Having found no mitigating or aggravating circumstance, the
CA sentenced them to an indeterminate sentence of 10 years
of prision mayor to 17 years of reclusion temporal. They were
also ordered to indemnify, jointly and severally, the heirs of
Lenny Villa in the sum of ₱50,000 and to pay the additional
amount of ₱1,000,000 by way of moral damages.
On 5 August 2002, the trial court in Criminal Case No. 38340
dismissed the charge against accused Concepcion on the ground of
violation of his right to speedy trial. Meanwhile, on different dates
between the years 2003 and 2005, the trial court denied the respective
Motions to Dismiss of accused Escalona, Ramos, Saruca, and Adriano.
On 25 October 2006, the CA in CA-G.R. SP Nos. 89060 & 90153
reversed the trial court’s Orders and dismissed the criminal case
against Escalona, Ramos, Saruca, and Adriano on the basis of
violation of their right to speedy trial.
From the aforementioned Decisions, the five (5) consolidated Petitions
were individually brought before this Court. (Citations omitted)
Motion for Partial Reconsideration
filed by Petitioner Gerarda H. Villa
Petitioner Villa filed the present Motion for Partial Reconsideration7 in
connection with G.R. Nos. 178057 & 178080 (Villa v. Escalona)
asserting that the CA committed grave abuse of discretion when it
dismissed the criminal case against Escalona, Ramos,Saruca, and
Adriano (collectively, Escalona et al.) in its assailed Decision and
Resolution.8 Villa reiterates her previous arguments that the right to
speedy trial of the accused was not violated, since they had failed to
assert that right within a reasonable period of time. She stresses that,
unlike their co-accused Reynaldo Concepcion, respondents Escalona
et al.did not timely invoke their right to speedy trial during the time
that the original records and pieces of evidence were unavailable. She
again emphasizes that the prosecution cannot be faulted entirely for
the lapse of 12 years from the arraignment until the initial trial, as
there were a number of incidents attributable to the accused
themselves that caused the delay of the proceedings. She then insists
that we apply the balancing test in determining whether the right to
speedy trial of the accused was violated.
Motion for Reconsideration filed by the OSG
The OSG, in its Motion for Reconsideration9 of G.R. Nos. 155101
(Dizon v. People) and 154954 (People v. Court of Appeals), agrees with
the findings of this Court that accused Dizon and Tecson et al. had
neither the felonious intent to kill (animus interficendi) nor the
felonious intent to injure (animus iniuriandi) Lenny Villa. In fact, it
concedes that the mode in which the accused committed the crime
was through fault (culpa). However, it contends that the penalty
imposed should have been equivalent to that for deceit (dolo) pursuant
to Article 249 (Homicide) of the Revised Penal Code. It argues that the
nature and gravity of the imprudence or negligence attributable to the
accused was so gross that it shattered the fine distinction between
dolo and culpaby considering the act as one committed with malicious
intent. It maintains that the accused conducted the initiation rites in
such a malevolent and merciless manner that it clearly endangered
the lives of the initiates and was thus equivalent to malice
aforethought.
With respect to the 19 other accused, or Victorino et al., the OSG
asserts that their acquittal may also be reversed despite the rule on
double jeopardy, as the CA also committed grave abuse of discretion
in issuing its assailed Decision (CA-G.R. No. 15520). The OSG insists
that Victorino et al. should have been similarly convicted like their
other co-accused Dizon, Almeda, Ama, Bantug, and Tecson, since the
former also participated in the hazing of Lenny Villa, and their actions
contributed to his death.
Motions for Clarification or Reconsideration of Tecson et al.
Respondents Tecson et al.,10 filed their respective motions pertaining
to G.R. No. 154954 (People v. Court of Appeals). They essentially seek
a clarification as to the effect of our Decision insofar as their criminal
liability and service of sentence are concerned. According to
respondents, they immediately applied for probation after the CA
rendered its Decision (CAG.R. No. 15520) lowering their criminal
liability from the crime of homicide, which carries a non-probationable
sentence, to slight physical injuries, which carries a probationable
sentence. Tecson et al.contend that, as a result, they have already
been discharged from their criminal liability and the cases against
them closed and terminated. This outcome was supposedly by virtue
of their Applications for Probation on various dates in January
200211 pursuant to Presidential Decree No. 968, as amended,
otherwise known as the Probation Law. They argue that Branch 130
of Caloocan City Regional Trial Court (RTC) had already granted their
respective Applications for Probation on 11 October 200212 and, upon
their completion of the terms and conditions thereof, discharged them
from probation and declared the criminal case against them
terminated on various dates in April 2003.13
To support their claims, respondents attached14 certified true copies
of their respective Applications for Probation and the RTC Orders
granting these applications, discharging them from probation, and
declaring the criminal case against them terminated. Thus, they
maintain that the Decision in CA-G.R. No. 15520 had already lapsed
into finality, insofar as they were concerned, whenthey waived their
right to appeal and applied for probation.
ISSUES
I. Whether the CA committed grave abuse of discretion
amounting to lack or excess of jurisdiction when it dismissed
the case against Escalona, Ramos, Saruca, and Adriano for
violation of their right to speedy trial
II. Whether the penalty imposed on Tecson et al. should have
corresponded to that for intentional felonies
III. Whether the completion by Tecson et al. of the terms and
conditions of their probation discharged them from their
criminal liability, and closed and terminated the cases against
them DISCUSSION
Findings on the Motion for Partial Reconsideration of
Petitioner Gerarda H. Villa
As regards the first issue, we take note that the factual circumstances
and legal assertions raised by petitioner Villa in her Motion for Partial
Reconsideration concerning G.R. Nos. 178057 & 178080 have already
been thoroughly considered and passed uponin our deliberations,
which led to our Decision dated 1 February 2012. We emphasize that
in light of the finding of violation of the right of Escalona et al. to
speedy trial, the CA’s dismissal of the criminal case against them
amounted to an acquittal,15 and that any appeal or reconsideration
thereof would result in a violation of their right against double
jeopardy.16 Though we have recognized that the acquittal of the
accused may be challenged where there has been a grave abuse of
discretion,17 certiorari would lie if it is convincingly established that
the CA’s Decision dismissing the case was attended by a whimsical or
capricious exercise of judgment equivalent to lack of jurisdiction. It
must be shown that the assailed judgment constitutes "a patent and
gross abuse of discretion amounting to an evasion of a positive duty
or to a virtual refusal to perform a duty imposed by law or toact in
contemplation of law; an exercise of power in an arbitrary and despotic
manner by reason of passion and hostility; or a blatant abuse of
authority to a point so grave and so severe as to deprive the court of
its very power to dispense justice."18 Thus, grave abuse of discretion
cannot be attributed to a court simply because it allegedly
misappreciated the facts and the evidence.19
We have taken a second look at the court records, the CA Decision,
and petitioner’s arguments and found no basis to rule that the CA
gravely abused its discretion in concluding that the right to speedy
trial of the accused was violated. Its findings were sufficiently
supported by the records of the case and grounded in law. Thus, we
deny the motion of petitioner Villa with finality.
Ruling on the Motion for Reconsideration filed by the OSG
We likewise deny with finality the Motion for Reconsideration filed by
the OSG with respect to G.R. Nos. 155101 (Dizon v. People) and
154954 (People v. Court of Appeals). Many of the arguments raised
therein are essentially a mere rehash of the earlier grounds alleged in
its original Petition for Certiorari.
Furthermore, we cannot subscribe to the OSG’s theory that even if the
act complained of was born of imprudence or negligence, malicious
intent can still be appreciated on account of the gravity of the actions
of the accused. We emphasize that the finding of a felony committed
by means of culpa is legally inconsistent with that committed by
means of dolo. Culpable felonies involve those wrongs done as a result
of an act performed without malice or criminal design. The Revised
Penal Code expresses thusly:
ARTICLE 365. Imprudence and Negligence. — Any person who, by
reckless imprudence, shall commit any act which, had it been
intentional, would constitute a grave felony, shall suffer the penalty of
arresto mayorin its maximum period toprisión correccional in its
medium period; if it would have constituted a less grave felony, the
penalty of arresto mayor in its minimum and medium periods shall be
imposed.
Any person who, by simple imprudence or negligence, shall commit an
act which would otherwise constitute a grave felony, shall suffer the
penalty of arresto mayorin its medium and maximum periods; if it
would have constituted a less serious felony, the penalty of arresto
mayor in its minimum period shall be imposed.
xxxx
Reckless imprudence consists in voluntary, but without malice, doing
or falling to do an act from which material damage results by reason
of inexcusable lack of precaution on the part of the person performing
or failing to perform suchact, taking into consideration his
employment or occupation, degree of intelligence, physical condition
and other circumstances regarding persons, time and place.
Simple imprudence consists in the lack of precaution displayed in
those cases in which the damage impending to be caused is not
immediate nor the danger clearly manifest. (Emphases supplied)
On the other hand, intentional felonies concern those wrongs in which
a deliberate malicious intent to do an unlawful act is present. Below
is our exhaustive discussion on the matter:20 Our Revised Penal Code
belongs tothe classical school of thought. x x x The identity of mens
rea– defined as a guilty mind, a guilty or wrongful purpose or criminal
intent – is the predominant consideration. Thus, it is not enough to do
what the law prohibits. In order for an intentional felony to exist, it is
necessary that the act be committed by means of doloor "malice."
The term "dolo" or "malice" is a complex idea involving the elements of
freedom, intelligence, and intent. x x x x The element of intent – on
which this Court shall focus – is described as the state of mind
accompanying an act, especially a forbidden act. It refers to the
purpose of the mind and the resolve with which a person proceeds.It
does not refer to mere will, for the latter pertains to the act, while
intentconcerns the result of the act. While motive is the "moving
power" that impels one to action for a definite result, intent is the
"purpose" of using a particular means to produce the result. On the
other hand, the term "felonious"means, inter alia, malicious,
villainous, and/or proceeding from an evil heart or purpose.With these
elements taken together, the requirement of intent in intentional
felony must refer to malicious intent, which is a vicious and
malevolent state of mind accompanying a forbidden act. Stated
otherwise, intentional felony requires the existence of dolus malus–
that the act or omission be done "willfully," "maliciously," "with
deliberate evil intent," and "with malice aforethought." The maxim is
actus non facit reum, nisi mens sit rea– a crime is not committed if
the mind of the person performing the act complained of is innocent.
As is required of the other elements of a felony, the existence of
malicious intent must be proven beyond reasonable doubt.
xxxx
The presence of an initial malicious intent to commit a felony is thus
a vital ingredient in establishing the commission of the intentional
felony of homicide. Being mala in se, the felony of homicide requires
the existence of malice or dolo immediately before or simultaneously
with the infliction of injuries. Intent to kill – or animus interficendi–
cannot and should not be inferred, unless there is proof beyond
reasonable doubt of such intent. Furthermore, the victim’s death must
not have been the product of accident, natural cause, or suicide. If
death resulted from an act executed without malice or criminal intent
– but with lack of foresight, carelessness, or negligence – the act must
be qualified as reckless or simple negligence or imprudence resulting
in homicide.
xxxx
In order to be found guilty ofany of the felonious acts under Articles
262 to 266 of the Revised Penal Code, the employment of physical
injuries must be coupled with dolus malus. As an act that is mala in
se, the existence of malicious intent is fundamental, since injury arises
from the mental state of the wrongdoer – iniuria ex affectu facientis
consistat. If there is no criminal intent, the accused cannot be found
guilty of an intentional felony. Thus, incase of physical injuries under
the Revised Penal Code, there must be a specific animus iniuriandi or
malicious intention to do wrong against the physical integrity or
wellbeing of a person, so as to incapacitate and deprive the victim of
certain bodily functions. Without proof beyond reasonable doubt of
the required animus iniuriandi, the overt act of inflicting physical
injuries per semerely satisfies the elements of freedom and intelligence
in an intentional felony. The commission of the act does not, in itself,
make a man guilty unless his intentions are.
Thus, we have ruled in a number of instances that the mere infliction
of physical injuries, absentmalicious intent, does not make a person
automatically liable for an intentional felony.x x x.
xxxx
The absence of malicious intent does not automatically mean,
however, that the accused fraternity members are ultimately devoid of
criminal liability. The Revised Penal Code also punishes felonies that
are committed by means of fault (culpa). According to Article 3 thereof,
there is fault when the wrongful act results from imprudence,
negligence, lack of foresight, or lack of skill.
Reckless imprudence or negligence consists of a voluntary act done
without malice, from which an immediate personal harm, injury or
material damage results by reason of an inexcusable lack of
precaution or advertence on the part of the person committing it. In
this case, the danger is visible and consciously appreciated by the
actor. In contrast, simple imprudence or negligence comprises an act
done without grave fault, from which an injury or material damage
ensues by reason of a mere lack of foresight or skill. Here, the
threatened harm is not immediate, and the danger is not openly
visible.
The test for determining whether or not a person is negligent in doing
an act is as follows: Would a prudent man in the position of the person
to whom negligence is attributed foresee harm to the person injured
as a reasonable consequence of the course about to be pursued? If so,
the law imposes on the doer the duty to take precaution against the
mischievous resultsof the act. Failure to do so constitutes negligence.
As we held in Gaid v. People, for a person to avoid being charged with
recklessness, the degree of precaution and diligence required varies
with the degree of the danger involved. If, on account of a certain line
of conduct, the danger of causing harm to another person is great, the
individual who chooses to follow that particular course of conduct is
bound to be very careful, inorder to prevent or avoid damage or injury.
In contrast, if the danger is minor, not much care is required. It is
thus possible that there are countless degrees of precaution or
diligence that may be required of an individual, "from a transitory
glance of care to the most vigilant effort." The duty of the person to
employ more or less degree of care will depend upon the circumstances
of each particular case. (Emphases supplied, citations omitted)
We thus reiterate that the law requires proof beyond reasonable doubt
of the existence of malicious intent or dolus malus before an accused
can be adjudged liable for committing an intentional felony.
Since the accused were found to have committed a felony by means of
culpa, we cannot agree with the argument of the OSG. It contends that
the imposable penalty for intentional felony can also be applied to the
present case on the ground that the nature of the imprudence or
negligence of the accused was so gross that the felony already
amounted to malice. The Revised Penal Code has carefully delineated
the imposable penalties as regards felonies committed by means of
culpaon the one hand and felonies committed by means of doloon the
other in the context of the distinctions it has drawn between them.
The penalties provided in Article 365 (Imprudence and Negligence) are
mandatorily applied if the death of a person occurs as a result of the
imprudence or negligence of another. Alternatively, the penalties
outlined in Articles 246 to 261 (Destruction of Life) are automatically
invoked if the death was a result of the commission of a forbidden act
accompanied by a malicious intent. These imposable penalties are
statutory, mandatory, and not subjectto the discretion of the court.
We have already resolved – and the OSG agrees – that the accused
Dizon and Tecson et al. had neither animus interficendi nor animus
iniuriandi in inflicting physical pain on Lenny Villa. Hence, we rule
that the imposable penalty is what is applicable to the crime of
reckless imprudence resulting in homicide as defined and penalized
under Article 365 of the Revised Penal Code.
Ruling on the Motions for Clarification or Reconsideration
filed by Tecson et al.
We clarify, however, the effect of our Decision in light of the motions
of respondents Tecson et al. vis-à-vis G.R. No. 154954 (People v. Court
of Appeals).
The finality of a CA decision will
bar the state from seeking
annulment of the judgment via
Rule 65 petition.
In their separate motions,21 respondents insist that the previous
verdict of the CA finding them guilty of slight physical injuries has
already lapsed into finality as a result of their respective availments of
the probation program and their ultimate discharge therefrom. Hence,
they argue that they can no longer be convicted of the heavier offense
of reckless imprudence resulting in homicide.22 Respondents allude to
our Decision in Tan v. People23 to support their contention that the CA
judgment can no longer be reversed or annulled even by this Court.
The OSG counters24 that the CA judgment could not have attained
finality, as the former had timely filed with this Court a petition for
certiorari. It argues that a Rule 65 petition is analogous to an appeal,
or a motion for new trial or reconsideration, in that a petition for
certiorarialso prevents the case from becoming final and executory
until after the matter is ultimately resolved.
Indeed, Rule 120 of the Rules of Court speaks of the finality of a
criminal judgment once the accused applies for probation, viz:
SECTION 7. Modification of judgment. — A judgment of
convictionmay, upon motion of the accused, be modified or set aside
before it becomes final or before appeal is perfected. Except where the
death penalty is imposed, a judgment becomes finalafter the lapse of
the period for perfecting an appeal, or whenthe sentence has been
partially or totally satisfied or served, or when the accusedhas waived
in writing his right to appeal, or has applied for probation. (7a)
(Emphases supplied)
Coupled with Section 7 of Rule 11725 and Section 1 of Rule 122,26 it
can be culled from the foregoing provisions that only the accused may
appeal the criminal aspect of a criminal case, especially if the relief
being sought is the correction or review of the judgment therein. This
rule was instituted in order to give life to the constitutional
edict27 against putting a person twice in jeopardy of punishment for
the same offense. It is beyond contention that the accused would be
exposed to double jeopardy if the state appeals the criminal judgment
in order to reverse an acquittal or even to increase criminal liability.
not Thus, the accused’s waiver of the right to appeal – as when applying
the for probation – makes the criminal judgment immediately final and
a executory. Our explanation in People v. Nazareno is worth
reiterating:28
Further prosecution via an appeal from a judgment of acquittal is
likewise barred because the government has already been afforded a
complete opportunity to prove the criminal defendant’s culpability;
after failing to persuade the court to enter a final judgment of
conviction, the underlying reasons supporting the constitutional ban
on multiple trials applies and becomes compelling. The reason is not
only the defendant’s already established innocence at the first trial
where he had been placed in peril of conviction, but also the same
untoward and prejudicial consequences of a second trial initiated by
a government who has at its disposal all the powers and resources of
the State.
Unfairness and prejudice would necessarily result, as the government
would then be allowed another opportunity to persuade a second trier
of the defendant’s guilt while strengthening any weaknesses that had
attended the first trial, all in a process where the government’s power
and resources are once again employed against the defendant’s
individual means. That the second opportunity comesvia an appeal
does not make the effects any less prejudicial by the standards of
reason, justice and conscience. (Emphases supplied, citations
omitted)
It must be clarified, however, that the finality of judgment evinced in
Section 7 of Rule 120 does not confer blanket invincibility on criminal
judgments. We have already explained in our Decision that the rule
on double jeopardy is not absolute, and that this rule is inapplicable
to cases in which the state assails the very jurisdiction of the court
that issued the criminal judgment.29 The reasoning behind the
exception is articulated in Nazareno, from which we quote:30
In such instance, however, no review of facts and law on the merits,
in the manner done in an appeal, actually takes place; the focus of the
review is on whether the judgment is per sevoid on jurisdictional
grounds, i.e., whether the verdict was rendered by a court that had no
jurisdiction; or where the court has appropriate jurisdiction, whether
it acted with grave abuse of discretion amounting to lack or excess of
jurisdiction. In other words, the review is on the question of whether
there has been a validly rendered decision, not on the question of the
decision’s error or correctness. Under the exceptional nature of a Rule
65 petition, the burden — a very heavy one — is on the shoulders of
the party asking for the review to show the presence of a whimsical or
capricious exercise of judgment equivalent to lack of jurisdiction; or of
a patent and gross abuse of discretion amounting to an evasion of a
positive duty or a virtual refusal to perform a duty imposed by law or
to act in contemplation of law; or to an exercise of power in an arbitrary
and despotic manner by reason of passion and hostility. (Emphases
supplied, citations omitted) While this Court’s Decision in Tan may
have created an impression of the unassailability of a criminal
judgment as soon as the accused applies for probation, we point out
that what the state filed therein was a mere motion for the modification
of the penalty, and not a Rule 65 petition. A petition for certiorari is a
special civil action that is distinct and separate from the main case.
While in the main case, the core issue is whether the accused is
innocent or guilty of the crime charged, the crux of a Rule 65 petition
is whether the court acted (a) without or in excess of its jurisdiction;
or (b) with grave abuse of discretion amounting to lack or excess of
jurisdiction. Hence, strictly speaking, there is nomodification of
judgment in a petition for certiorari, whose resolution does not call for
a re-evaluation of the merits of the case in order to determine the
ultimate criminal responsibility of the accused. In a Rule 65 petition,
any resulting annulment of a criminal judgment is but a consequence
of the finding of lack of jurisdiction.
In view thereof, we find that the proper interpretation of Section 7 of
Rule 120 must be that it is inapplicable and irrelevant where the
court’s jurisdiction is being assailed through a Rule 65 petition.
Section 7 of Rule 120 bars the modification of a criminal judgment
only if the appeal brought before the court is in the nature of a regular
appeal under Rule 41, or an appeal by certiorari under Rule 45, and
if that appeal would put the accused in double jeopardy. As it is, we
find no irregularity in the partial annulment of the CA Decision in CA-
G.R. No. 15520 in spite of its finality, as the judgment therein was
issued with grave abuse of discretion amounting to lack or excess of
jurisdiction.
The orders of Caloocan City RTC
Branch 130 have no legal effect, as
they were issued without jurisdiction.
First, Tecson et al. filed their Applications for Probation with the wrong
court. Part and parcel of our criminal justice system is the authority
or jurisdiction of the court to adjudicate and decide the case before it.
Jurisdiction refers to the power and capacity of the tribunal to hear,
try, and decide a particular case or matter before it.31 That power and
capacity includes the competence to pronounce a judgment, impose a
punishment,32 and enforce or suspend33 the execution of a sentencein
accordance with law.
The OSG questions34 the entire proceedings involving the probation
applications of Tecson et al. before Caloocan City RTC Branch 130.
Allegedly, the trial court did not have competence to take cognizance
of the applications, considering that it was not the court of origin of
the criminal case. The OSG points out that the trial court that
originally rendered the Decision in Criminal Case No. C-38340(91) was
Branch 121 of the Caloocan City RTC.
The pertinent provision of the Probation Law is hereby quoted for
reference:
SEC. 4. Grant of Probation. — Subject to the provisions of this Decree,
the trial court may, after it shall have convicted and sentenced a
defendant, and upon application by said defendant within the period
for perfecting an appeal, suspend the execution of the sentence and
place the defendant on probation for such period and upon such terms
and conditions as it may deem best; Provided, That no application for
probation shall be entertained or granted if the defendant has
perfected the appeal from the judgment of conviction. x x x x
(Emphases supplied)
It is obvious from the foregoing provision that the law requires that an
application for probation be filed withthe trial court that convicted and
sentenced the defendant, meaning the court of origin. Here, the trial
court that originally convicted and sentenced Tecson et al.of the crime
of homicide was Branch 121 – not Branch 130 – of the Caloocan City
RTC.35 Neither the judge of Branch 130 in his Orders nor Tecson et
al.in their pleadings have presented any explanation or shown any
special authority that would clarify why the Applications for Probation
had not been filed with or taken cognizance of by Caloocan City RTC
Branch 121. While we take note that in a previous case, the CA issued
a Decision ordering the inhibition of Branch 121 Judge Adoracion G.
Angeles from hearing and deciding Criminal Case No. C-38340(91),
the ruling was made specifically applicable to the trial of petitioners
therein, i.e. accused Concepcion, Ampil, Adriano, and S. Fernandez.36
Tecson et al. thus committed a fatal error when they filed their
probation applications with Caloocan City RTC Branch 130, and not
with Branch 121. We stress that applicants are not at liberty to choose
the forum in which they may seek probation, as the requirement under
Section 4 of the Probation law is substantive and not merely
procedural. Considering, therefore, that the probation proceedings
were premised on an unwarranted exercise of authority, we find that
Caloocan City RTC Branch 130 never acquired jurisdiction over the
case.
Second, the records of the casewere still with the CA when Caloocan
City RTC Branch 130 granted the probation applications. Jurisdiction
over a case is lodged with the court in which the criminal action has
been properly instituted.37 If a party appeals the trial court’s judgment
or final order,38 jurisdiction is transferred to the appellate court. The
execution of the decision is thus stayed insofar as the appealing party
is concerned.39 The court of origin then loses jurisdiction over the
entire case the moment the other party’s time to appeal has
expired.40 Any residual jurisdiction of the court of origin shall cease –
including the authority to order execution pending appeal – the
moment the complete records of the case are transmitted to the
appellate court.41 Consequently, it is the appellate court that shall
have the authority to wield the power to hear, try, and decide the case
before it, as well as to enforce its decisions and resolutions
appurtenant thereto. That power and authority shall remain with the
appellate court until it finally disposes of the case. Jurisdiction cannot
be ousted by any subsequent event, even if the nature of the incident
would have prevented jurisdiction from attaching in the first place.
According to Article 78 of the Revised Penal Code, "[n]o penalty shall
be executed except by virtue of a final judgment." A judgment of a
court convicting or acquitting the accused of the offense charged
becomes final under any of the following conditions among
others:42 after the lapse of the period for perfecting an appeal; when
the accused waives the right to appeal; upon the grant of a withdrawal
ofan appeal; when the sentence has already been partially or totally
satisfied or served; or when the accused applies for probation. When
the decision attains finality, the judgment or final order is entered in
the book of entries of judgments.43 If the case was previously appealed
to the CA, a certified true copy of the judgment or final order must be
attached to the original record, which shall then be remanded to the
clerk of the court from which the appeal was taken.44 The court of
origin then reacquires jurisdiction over the case for appropriate action.
It is during this time that the court of origin may settle the matter of
the execution of penalty or the suspension of the execution
thereof,45 including the convicts’ applications for probation.46
A perusal of the case records reveals that the CA had not yet
relinquished its jurisdiction over the case when Caloocan City RTC
Branch 130 took cognizance of the Applications for Probation of
Tecson et al. It shows that the accused filed their respective
applications47 while a motion for reconsideration was still pending
before the CA48 and the records were still with that court.49 The CA
settled the motion only upon issuing the Resolution dated 30 August
2002 denying it, or about seven months after Tecson et al. had filed
their applications with the trial court.50 In September 2002, or almost
a month before the promulgation of the RTC Order dated 11 October
2002 granting the probation applications,51 the OSG had filed
Manifestations of Intent to File Petition for Certiorari with the CA52 and
this Court.53 Ultimately, the OSG assailed the CA judgments by filing
before this Court a Petition for Certiorari on 25 November 2002. 54 We
noted the petition and then required respondents to file a comment
thereon.55 After their submission of further pleadings and motions, we
eventually required all parties to file their consolidated
memoranda.56 The records of the case remained with the CA until they
were elevated to this Court in 2008.57
For the foregoing reasons, we find that RTC Branch 130 had no
jurisdiction to act on the probation applications of Tecson et al. It had
neither the power nor the authority to suspend their sentence, place
them on probation, order their final discharge, and eventually declare
the case against them terminated. This glaring jurisdictional faux
pasis a clear evidence of either gross ignorance of the law oran
underhanded one-upmanship on the part of RTC Branch 130 or
Tecson et al., or both – to which this Court cannot give a judicial
imprimatur.
In any event, Tecson et al. were ineligible to seek probation at the time
they applied for it. Probation58 is a special privilege granted by the
state to penitent qualified offenders who immediately admit their
liability and thus renounce their right to appeal. In view of their
acceptance of their fate and willingness to be reformed, the state
affords them a chance to avoid the stigma of an incarceration recordby
making them undergo rehabilitation outside of prison. Some of the
major purposes of the law are to help offenders to eventually develop
themselves into law-abiding and self respecting individuals, as well as
to assist them in their reintegration with the community.
It must be reiterated that probation is not a right enjoyed by the
accused. Rather, it is an act of grace orclemency conferred by the
state. In Francisco v. Court of Appeals,59 this Court explained thus:
It is a special prerogative granted by law to a person or group of
persons not enjoyed by others or by all. Accordingly, the grant of
probation rests solely upon the discretion of the court which is to be
exercised primarily for the benefit of organized society, and only
incidentally for the benefit of the accused. The Probation Law should
not therefore be permitted to divest the state or its government of any
of the latter’s prerogatives, rights or remedies, unless the intention of
the legislature to this end is clearly expressed, and no person should
benefit from the terms of the law who is not clearly within them.
(Emphases supplied)
The OSG questions the validity of the grant of the probation
applications of Tecson et al.60 It points out that when they appealed to
the CA their homicide conviction by the RTC, they thereby made
themselves ineligible to seek probation pursuant to Section 4 of
Presidential Decree No. 968 (the Probation Law).
We refer again to the full text ofSection 4 of the Probation Law as
follows:
SEC. 4. Grant of Probation. — Subject to the provisions of this Decree,
the trial court may, after it shall have convicted and sentenced a
defendant, and upon application by said defendant within the period
for perfecting an appeal, suspend the execution of the sentence and
place the defendant on probation for such period and upon such terms
and conditions as it may deem best; Provided, That no application for
probation shall be entertained or granted if the defendant has
perfected the appeal from the judgment of conviction.
Probation may be granted whether the sentence imposes a term of
imprisonment or a fine only. An application for probation shall be filed
with the trial court. The filing of the application shall be deemed a
waiver of the right to appeal.
An order granting or denying probation shall not be appealable.
(Emphases supplied)
Indeed, one of the legal prerequisites of probation is that the offender
must not have appealed the conviction.61 In the 2003 case Lagrosa v.
Court of Appeals,62 this Court was faced with the issue of whether a
convict may still apply for probation even after the trial court has
imposed a non probationable verdict, provided that the CA later on
lowers the original penalty to a sentence within the probationable
limit. In that case, the trial court sentenced the accused to a maximum
term of eight years of prisión mayor, which was beyond the coverage
of the Probation Law. They only became eligible for probation after the
CA reduced the maximum term of the penalty imposed to 1 year, 8
months and 21 days of prisión correccional.
In deciding the case, this Court invoked the reasoning in Francisco
and ruled that the accused was ineligiblefor probation, since they had
filed an appeal with the CA. In Francisco, we emphasized that Section
4 of the Probation Law offers no ambiguity and does not provide for
any distinction, qualification, or exception. What is clearis that all
offenders who previously appealed their cases, regardless of their
reason for appealing, are disqualified by the law from seeking
probation. Accordingly, this Court enunciated in Lagrosathat the
accused are disallowed from availing themselves of the benefits of
probation if they obtain a genuine opportunity to apply for probation
only on appeal as a result of the downgrading of their sentence from
non-probationable to probationable.
While Lagrosa was promulgated three months after Caloocan City RTC
Branch 130 issued its various Orders discharging Tecson et al. from
probation, the ruling in Lagrosa, however, was a mere reiteration of
the reasoning of this Court since the 1989 case Llamado v. Court of
Appeals63 and Francisco. The Applications for Probation of Tecson et
al., therefore, should not have been granted by RTC Branch 130, as
they had appealed their conviction to the CA. We recall that
respondents were originally found guilty of homicide and sentenced to
suffer 14 years, 8 months, and 1 day of reclusion temporal as
maximum. Accordingly, even if the CA later downgraded their
conviction to slight physical injuries and sentenced them to 20 days
of arresto menor, which made the sentence fall within probationable
limits for the first time, the RTC should have nonetheless found them
ineligible for probation at the time.
The actions of the trial court must thus be adjudged as an arbitrary
and despotic use of authority, so gross that it divested the court of its
very power to dispense justice. As a consequence, the RTC Orders
granting the Applications for Probation of Tecson et al. and thereafter
discharging them from their criminal liability must be deemed to have
been issued with grave abuse of discretion amounting to lack or excess
of jurisdiction.
Whether for lack of jurisdiction orfor grave abuse of discretion,
amounting to lack or excess of jurisdiction, we declare all orders,
resolutions, and judgments of Caloocan City RTC Branch 130 in
relation to the probation applications of Tecson et al. null and void for
having been issued without jurisdiction. We find our pronouncement
in Galman v. Sandiganbayan64 applicable, viz:
A void judgment is, in legal effect, no judgment at all. By it no rights
are divested. Through it, no rights can be attained. Being worthless,
all proceedings founded upon it are equally worthless. It neither binds
nor bars anyone. All acts performed under it and all claims flowing out
of it are void. (Emphasis supplied)
The ultimate discharge of Tecson et
al. from probation did not totally
extinguish their criminal liability.
Accused Bantug asserts65 that, in any event, their criminal liability
has already been extinguished as a result of their discharge from
probation and the eventual termination of the criminal case against
them by Caloocan City RTC Branch 130. To support his argument, he
cites the following provision of the Revised Penal Code:
ARTICLE 89. How Criminal Liability is Totally Extinguished. —
Criminal liability is totally extinguished:
1. By the death of the convict, as to the personal penalties;
and as to pecuniary penalties, liability therefor is extinguished
only when the death of the offender occurs before final
judgment.
2. By service of the sentence.
3. By amnesty, which completely extinguishes the penalty and
all its effects.
4. By absolute pardon.
5. By prescription of the crime.
6. By prescription of the penalty.
 7. By the marriage of the offended woman, as provided in
article 344 of this Code. (Emphasis supplied)
As previously discussed, a void judgment cannot be the source of legal
rights; legally speaking, it is as if no judgment had been rendered at
all. Considering our annulment of the Orders of Caloocan City RTC
Branch 130 in relation to the probation proceedings, respondents
cannot claim benefits that technically do not exist.
In any event, Tecson et al.cannot invoke Article89 of the Revised Penal
Code, as we find it inapplicable to this case. One of the hallmarks of
the Probation Law is precisely to "suspend the execution of the
sentence,"66 and not to replace the original sentence with another, as
we pointed out in our discussion in Baclayon v. Mutia:67
An order placing defendant on "probation" is not a "sentence" but is
rather in effect a suspension of the imposition of sentence. It is not a
final judgment but is rather an "interlocutory judgment"in the nature
of a conditional order placing the convicted defendant under the
supervision of the court for his reformation, to be followed by a final
judgment of discharge, if the conditions of the probation are complied
with, or by a final judgment of sentence if the conditions are violated.
(Emphases supplied)
Correspondingly, the criminal liability of Tecson et al.remains.
In light of our recent Decision in
Colinares v. People, Tecson et al.
may now reapply for probation.
Very recently, in Colinares v. People,68 we revisited our ruling in
Franciscoand modified our pronouncements insofar as the eligibility
for probation of those who appeal their conviction is concerned.
Through a majority vote of 9-6, the Court En Bancin effect abandoned
Lagrosaand settled the following once and for all:69
Secondly, it is true that under the probation law the accused who
appeals "from the judgment of conviction" is disqualified from availing
himself of the benefits of probation. But, as it happens, two judgments
of conviction have been meted out to Arnel: one, a conviction for
frustrated homicide by the regional trial court,now set aside; and, two,
a conviction for attempted homicide by the Supreme Court.
If the Court chooses to go by the dissenting opinion’s hard position, it
will apply the probation law on Arnel based on the trial court’s
annulled judgment against him. He will not be entitled to probation
because of the severe penalty that such judgment imposed on him.
More, the Supreme Court’s judgment of conviction for a lesser offense
and a lighter penalty will also have to bend over to the trial court’s
judgment — even if this has been found in error. And, worse, Arnel
will now also be made to pay for the trial court’s erroneous judgment
with the forfeiture of his right to apply for probation. Ang kabayo ang
nagkasala, ang hagupit ay sa kalabaw(the horse errs, the carabao gets
the whip). Where is justice there?
The dissenting opinion also expresses apprehension that allowing
Arnel to apply for probation would dilute the ruling of this Court in
Francisco v. Court of Appealsthat the probation law requires that an
accused must not have appealed his conviction before he can avail
himself of probation. But there is a huge difference between
Franciscoand this case.
xxxx
Here, however, Arnel did not appeal from a judgment that would have
allowed him to apply for probation. He did not have a choice between
appeal and probation. Hewas not in a position to say, "By taking this
appeal, I choose not to apply for probation." The stiff penalty that the
trial court imposed on him denied him that choice. Thus, a ruling that
would allow Arnel to now seek probation under this Court’s greatly
diminished penalty will not dilute the sound ruling in Francisco. It
remains that those who will appeal from judgments of conviction,
when they have the option to try for probation, forfeit their right to
apply for that privilege.
xxxx
In a real sense, the Court’s finding that Arnel was guilty, not of
frustrated homicide, but only of attempted homicide, is an original
conviction that for the first time imposes on him a probationable
penalty. Had the RTC done him right from the start, it would have
found him guilty of the correct offense and imposed on him the right
penalty of two years and four months maximum. This would have
afforded Arnel the right to apply for probation.
The Probation Law never intended to deny an accused his right to
probation through no fault of his. The underlying philosophy of
probation is one of liberality towards the accused. Such philosophy is
not served by a harsh and stringent interpretation of the statutory
provisions. As Justice Vicente V. Mendoza said in his dissent in
Francisco, the Probation Law must not be regarded as a mere privilege
to be given to the accused only where it clearly appears he comes
within its letter; to do so would be to disregard the teaching in many
cases that the Probation Law should be applied in favor of the accused
not because it is a criminal law but to achieve its beneficent purpose.
xxxx
At any rate, what is clear is that, had the RTC done what was right
and imposed on Arnel the correct penalty of two years and four months
maximum, he would havehad the right to apply for probation. No one
could say with certainty that he would have availed himself of the right
had the RTC doneright by him. The idea may not even have crossed
his mind precisely since the penalty he got was not probationable.
The question in this case is ultimately one of fairness.1âwphi1 Is it
fair to deny Arnel the right to apply for probation when the new penalty
that the Court imposes on him is, unlike the one erroneously imposed
by the trial court, subject to probation? (Emphases supplied)
In our Decision, we set aside the RTC and the CA judgments and found
Tecson et al.ultimately liable for the crime of reckless imprudence
resulting in homicide. Pursuant to Article 365 of the Revised Penal
Code, the offense is punishable by arresto mayor in its maximum
period (from 4 months and 1 day to 6 months) to prisión correccional
in its medium period (from 2 years, 4 months, and 1 day to 4 years
and 2 months). Considering that the new ruling in Colinares is more
favorable to Tecson et al., we rule that they are now eligible to apply
for probation. Since Fidelito Dizon (Dizon) was convicted of the same
crime, we hereby clarify that Dizon is also eligible for probation.
While we cannot recognize the validityof the Orders of RTC Branch
130, which granted the Applications for Probation, we cannot
disregard the fact that Tecson et al. have fulfilled the terms and
conditions of their previous probation program and have eventually
been discharged therefrom. Thus, should they reapply for probation,
the trial court may, at its discretion, consider their antecedent
probation service in resolving whether to place them under probation
at this time and in determining the terms, conditions, and period
thereof.
Final clarificatory matters
We now take this opportunity to correct an unintentional
typographical error in the minimum term of the penalty imposed on
the accused Dizon and Tecson et al. While this issue was not raised
by any of the parties before us, this Court deems it proper to discuss
the matter ex proprio motuin the interest of justice. In the first
paragraph of the dispositive portion of our Decision dated 1 February
2012, the fourth sentence reads as follows:
They are hereby sentenced to suffer anindeterminate prison term of
four (4) months and one (1) day of arresto mayor, as minimum, to four
(4) years and two (2) months of prisión correccional, as maximum.
As we had intended to impose on the accused the maximum term of
the "penalty next lower" than that prescribed by the Revised Penal
Code for the offense of reckless imprudence resulting in homicide, in
accordance with the Indeterminate Sentence Law (ISL),70 the phrase
"and one (1) day," which had been inadvertently added, must be
removed. Consequently, in the first paragraph of the dispositive
portion, the fourth sentence should now read as follows:
They are hereby sentenced to suffer anindeterminate prison term of
four (4) months of arresto mayor, as minimum, to four (4) years and
two (2) months of prisión correccional, as maximum. In this instance,
we further find it important to clarify the accessory penalties inherent
to the principal penalty imposed on Dizon and Tecson et al.
By operation of Articles 40 to 45 and 73 of the Revised Penal Code, a
corresponding accessory penalty automatically attaches every time a
court lays down a principal penalty outlined in Articles 25 and 27
thereof.71 The applicable accessory penalty is determined by using as
reference the principal penaltyimposed by the court before the prison
sentence is computed in accordance with the ISL.72 This
determination is made in spite of the two classes ofpenalties
mentioned in an indeterminate sentence. It must be emphasized that
the provisions on the inclusion of accessory penalties specifically
allude to the actual "penalty"73 imposed, not to the "prison
sentence"74 set by a court. We believe that the ISL did not intend to
have the effect of imposing on the convict two distinct sets of accessory
penalties for the same offense.75 The two penalties are only relevant
insofar as setting the minimum imprisonment period is concerned,
after which the convict may apply for parole and eventually seek the
shortening of the prison term.76
Under Article 365 of the Revised Penal Code, the prescribed penalty
for the crime of reckless imprudence resulting in homicide is arresto
mayor in its maximum period to prisión correccionalin its medium
period. As this provision grants courts the discretion tolay down a
penalty without regard to the presence of mitigating and aggravating
circumstances, the imposable penaltymust also be within the
aforementioned range.77 Hence, before applying the ISL, we ultimately
imposed on Dizon and Tecson et al. the actual (straight) penalty 78 of
four years and two months of prisión correccional.79 Pursuant to
Article 43 of the Revised Penal Code, the penalty of prisión correccional
automatically carries with it80 the following accessory penalties:
ARTICLE 43. Prisión Correccional— Its accessory penalties. — The
penalty of prisión correccional shall carry with it that of suspension
from public office, from the right tofollow a profession or calling, and
that of perpetual special disqualification from the right of suffrage, if
the duration of said imprisonment shall exceed eighteen months. The
offender shall suffer the disqualification provided in this article
although pardoned as to the principal penalty, unless the same shall
have been expressly remitted in the pardon.
The duration of their suspension shall be the same as that of their
principal penalty sans the ISL; that is, for four years and two
months81 or until they have served their sentence in accordance with
law. Their suspension takes effect immediately, once the judgment of
conviction becomes final.82
We further point out that if the length of their imprisonment exceeds
18 months, they shall furthermore suffer a perpetual special
disqualification from the right of suffrage. Under Article 32 of the
RevisedPenal Code, if this accessory penalty attaches, it shall forever
deprive them of the exercise of their right (a) to vote in any popular
election for any public office; (b) to be elected to that office; and (c) to
hold any public office.83 Any public office that they may be holding
becomes vacant upon finality of the judgment.84 The aforementioned
accessory penalties can only be wiped out if expressly remitted in a
pardon.85
Of course, the aforementioned accessory penalties are without
prejudice to a grant of probation, shouldthe trial court find them
eligible therefor. As we explained in Baclayon,86 the grant of probation
suspends the execution of the principal penalty of imprisonment, as
well as that of the accessory penalties. We have reiterated this point
in Moreno v. Commission on Elections:87
In Baclayon v. Mutia, the Court declared that an order placing
defendant on probation is not a sentence but is rather, in effect, a
suspension of the imposition of sentence. We held that the grant of
probation to petitioner suspended the imposition of the principal
penalty of imprisonment, as well as the accessory penalties of
suspension from public office and from the right to follow a profession
or calling, and that of perpetual special disqualification from the right
of suffrage. We thus deleted from the order granting probation the
paragraph which required that petitioner refrain from continuing with
her teaching profession.
Applying this doctrine to the instant case, the accessory penalties of
suspension from public office, from the right to follow a profession or
calling, and that of perpetual special disqualification from the right of
suffrage, attendant to the penalty of arresto mayor in its maximum
period to prision correccional in its minimum period imposed upon
Moreno were similarly suspended upon the grant of probation.
It appears then that during the period of probation, the probationer is
not even disqualified from running for a public office because the
accessory penalty of suspension from public office is put on hold for
the duration of the probation. x x x x. During the period of probation,
the probationer does not serve the penalty imposed upon him by the
court but is merely required to comply with all the conditions
prescribed in the probation order.
WHEREFORE, premises considered, the Motion for Partial
Reconsideration of petitioner Gerarda H. Villa in connection with G.R.
Nos. 178057 & 178080 is hereby DENIED. The Motion for
Reconsideration filed by the Office of the Solicitor General concerning
G.R. Nos. 155101 and 154954 is also DENIED.
The respective Motions for Clarification or Reconsideration of Antonio
Mariano Almeda, Junel Anthony D. Arna, Renato Bantug, Jr., and
Vincent Tecson are likewise DENIED. In light of the finding that
Caloocan City Regional Trial Court Branch 130 acted without or in consultation before the case was assigned to the writer of the opinion
excess of its jurisdiction in taking cognizance of the aforementioned of the Court's Division.
Applications for Probation, we hereby ANNUL the entire probation
proceedings and SET ASIDE all orders, resolutions, or judgments MARIA LOURDES P.A. SERENO
issued in connection thereto. We, however, CLARIFY that Antonio Chief Justice
Mariano Almeda, Junel Anthony D. Arna, Renato Bantug, Jr., Vincent
Tecson, and Fidelito Dizon are eligible to apply or reapply for probation
in view of our recent ruling in Colinares v. People of the
Philippines,88 without prejudice to their remaining civil liability, if any.

Furthermore, we issue a CORRECTION of the dispositive portion of

our Decision dated 1 February 2012 and hereby delete the phrase "and
one (1) day" located in the fourth sentence of the first paragraph
thereof. The sentence shall now read as follows: "They are hereby
sentenced to suffer an indeterminate prison term of four (4) months of
arresto mayor, as minimum, to four (4) years and two (2) months of
prisi6n correccional, as maximum."

SO ORDERED.

MARIA LOURDES P.A. SERENO

Chief Justice

WE CONCUR:

ANTONIO T. CARPIO
Senior Associate Justice
Chairperson

MARTIN S. VILLARAMA,
JOSE PORTUGAL PEREZ
JR.*
Associate Justice
Associate Justice

BIENVENIDO L. REYES
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that

the conclusions in the above Resolution had been reached in