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Lawyer's Oath: Republic vs. Democracy

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Lawyer's Oath

I, do solemnly swear that I will maintain allegiance to the Republic of the Philippines, I will
support the Constitution and obey the laws as well as the legal orders of the duly constituted
authorities therein; I will do no falsehood, nor consent to the doing of any in court; I will not
wittingly or willingly promote or sue any groundless, false or unlawful suit, or give aid nor
consent to the same; I will delay no man for money or malice, and will conduct myself as a
lawyer according to the best of my knowledge and discretion, with all good fidelity as well to
the courts as to my clients; and I impose upon myself these voluntary obligations without
any mental reservation or purpose of evasion. So help me God.

Define law

The law is a system of rules that a society or government develops in order to deal with
crime, business agreements, and social relationships.

Sources of law

1. Legislation

2. Precedent

3. Custom

4. Court decision

Ignorantia legis non excusat- Ignorance of the law excuses no one.

Dura lex sed lex-the may be harsh, but it is still the law.

Salus populi est suprema lex- The welfare of the people shall the supreme law

State and Government

Government refers to the group of authorized people who governs a country or


a state. State refers to the organized political community living under a single system
of government. The main difference between state and government is that state is more or less
permanent whereas government is temporary.

Republic vs. Democracy


 Republics and democracies both provide a political system in which citizens are
represented by elected officials who are swon to protect their interests.
 In a pure democracy, laws are made directly by the voting majority leaving the rights
of the minority largely unprotected.
 In a republic, laws are made by representatives chosen the people and must comply
with a constitution which specifically protects the rights of the minority from the will
of the majority.
 The United States, while basically a republic, is best described as a “representative
democracy.”
Letter of the UP

They undermine the Court’s honesty, integrity and competence in addressing the motion for its
reconsideration.

This runs contrary to their obligation as law professors and officers of the Court to be the first to
uphold the dignity and authority of this Court, to which they owe fidelity according to the oath they
have taken as attorneys, and not to promote distrust in the administration of justice.

Can Lawyers criticize the courts?

While lawyers can criticize courts, he said it is always important to always deal “with the highest degree of
professionalism and civility.”

Ulep

Issue:

The main issues posed for resolution before the Court are whether or not the services offered by respondent, The Legal
Clinic, Inc., as advertised by it constitutes practice of law and, in either case, whether the same can properly be the
subject of the advertisements herein complained of.

This is not only misleading, but encourages, or serves to induce, violation of Philippine law. At the very least, this can
be considered "the dark side" of legal practice, where certain defects in Philippine laws are exploited for the sake of
profit. At worst, this is outright malpractice.

Rule 1.02. - A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the
legal system.

It has been held that the practice of law is not limited to the conduct of cases in court, but includes drawing of deeds,
incorporation, rendering opinions, and advising clients as to their legal right and then take them to an attorney and ask
the latter to look after their case

Practice of law means any activity, in or out of court, which requires the application of law, legal procedures, knowledge,
training and experience. To engage in the practice of law is to perform those acts which are characteristic of the
profession. Generally, to practice law is to give advice or render any kind of service that involves legal knowledge or
skill.

The practice of law is not limited to the conduct of cases in court. It includes legal advice and counsel, and the
preparation of legal instruments and contract by which legal rights are secured, although such matter may or may not
be pending in a court.
Black defines "practice of law" as:

The rendition of services requiring the knowledge and the application of legal principles and technique to serve the
interest of another with his consent. It is not limited to appearing in court, or advising and assisting in the conduct of
litigation, but embraces the preparation of pleadings, and other papers incident to actions and special proceedings,
conveyancing, the preparation of legal instruments of all kinds, and the giving of all legal advice to clients. It embraces
all advice to clients and all actions taken for them in matters connected with the law.

We repeat, the canon of the profession tell us that the best advertising possible for a lawyer is a well-merited reputation
for professional capacity and fidelity to trust, which must be earned as the outcome of character and conduct. Good and
efficient service to a client as well as to the community has a way of publicizing itself and catching public attention.

The standards of the legal profession condemn the lawyer's advertisement of his talents. A lawyer cannot, without
violating the ethics of his profession. advertise his talents or skill as in a manner similar to a merchant advertising his
goods. 37The prescription against advertising of legal services or solicitation of legal business rests on the fundamental
postulate that the that the practice of law is a profession

We repeat, the canon of the profession tell us that the best advertising possible for a lawyer is a well-merited reputation
for professional capacity and fidelity to trust, which must be earned as the outcome of character and conduct. Good and
efficient service to a client as,well as to the community has a way of publicizing itself and catching public attention. That
publicity is a normal by-product of effective service which is right and proper. A good and reputable lawyer needs no
artificial stimulus to generate it and to magnify his success. He easily sees the difference between a normal by-product
of able service and the unwholesome result of propaganda.

Philippine Lawyer’s Association vs Agrava

The Supreme Court has the exclusive and constitutional power with respect to admission to the practice of law in the
Philippines1 and to any member of the Philippine Bar in good standing may practice law anywhere and before any
entity, whether judicial or quasi-judicial or administrative, in the Philippines. Naturally, the question arises as to
whether or not appearance before the patent Office and the preparation and the prosecution of patent applications,
etc., constitutes or is included in the practice of law.

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 social 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 corporation services, assessment and condemnation services
contemplating an appearance before a judicial body, the foreclosure of a mortgage, enforcement of a creditor's claim
in bankruptcy and insolvency proceedings, and conducting proceedings in attachment, and in matters of estate and
guardianship have been held to constitute law practice as do the preparation and drafting of legal instruments, where
the work done involves the determination by the trained legal mind of the legal effect of facts and conditions. (5 Am.
Jur. p. 262, 263). (Emphasis supplied).

Practice of law under modern conditions consists in no small part of work performed outside of any court and having
no immediate relation to proceedings in court. It embraces conveyancing, the giving of legal advice on a large variety
of subjects, and the preparation and execution of legal instruments covering an extensive field of business and trust
relations and other affairs. Although these transactions may have no direct connection with court proceedings, they
are always subject to become involved in litigation. They require in many aspects a high degree of legal skill, a wide
experience with men and affairs, and great capacity for adaptation to difficult and complex situations. These
customary functions of an attorney or counselor at law bear an intimate relation to the administration of justice by the
courts. No valid distinction, so far as concerns the question set forth in the order, can be drawn between that part
which involves advice and drafting of instruments in his office. It is of importance to the welfare of the public that these
manifold customary functions be performed by persons possessed of adequate learning and skill, of sound moral
character, and acting at all times under the heavy trust obligations to clients which rests upon all attorneys.
Monsod

Held: In the case of Philippine Lawyers Association vs. Agrava, stated: The practice of law is not limited to the conduct of
cases or litigation in court; it embraces the preparation of pleadings and other papers incident to actions and special
proceeding, the management of such actions and proceedings on behalf of clients before judges and courts, and in
addition, conveying. In general, all advice to clients, and all action taken for them in matters connected with the law
incorporation services, assessment and condemnation services, contemplating an appearance before judicial body,
the foreclosure of mortgage, enforcement of a 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. Practice of law means any activity, in or out court, which requires the application of law, legal procedure,
knowledge, training and experience.

The contention that Atty. Monsod does not posses the required qualification of having engaged in the practice of law for at
least ten years is incorrect since Atty. Monsod’s past work experience as a lawyer-economist, a lawyer-manager, a
lawyer-entrepreneur of industry, a lawyer-negotiator of contracts, and a lawyer-legislator of both rich and the poor – verily
more than satisfy the constitutional requirement for the position of COMELEC chairman, The respondent has been engaged in
the practice of law for at least ten years does In the view of the foregoing, the petition is DISMISSED.

LEGAL ETHICS

– is a branch of moral science, which treats of the duties which an attorney owes to the court, to the client, to his colleagues in
the profession and to the public as embodied in the Constitution, Rules of Court, the Code of Professional Responsibility,
Canons of Professional Ethics, jurisprudence, moral laws and special laws.

4c’s- client,colleagues, constitution, court

Treatises and publications

Present Basis of the Philippine Legal System: Code of Professional Responsibility.

Practice of Law – 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 give notice or render any kind of service, which or devise or service requires
the use in any degree of legal knowledge or skill (Cayetano v. Monsod, 201 SCRA 210).

Attorney-at-law/Counsel-at-law/Attorney/Counsel/ Abogado/Boceros: that class of persons who are licensed officers of the
courts, empowered to appear prosecute and defend and upon whom peculiar duties, responsibilities, and liabilities are
developed by law as a consequence (Cui v. Cui, 120 Phil. 729).

Judiciary Power

Judicial power to settle 1.actual controversies involving rights which are legally demandable and enforceable,

2. determine whether or not there has been a grave abuse of discretion amounting to a lack or
excess of jurisdiction on the part of any branch or instrumentality of the government

Belgica et. Al., v. Ochoa, et. Al.,

The principle of separation of powers refers to the constitutional demarcation of the


three fundamentalpowers of government. In the celebrated words of Justice Laurel in
Angara v. Electoral Commission, itmeans that the "Constitution has blocked out with
deft strokes and in bold lines, allotment of power tothe executive, the legislative and the
judicial departments of the government." To the legislative branchof government,
through Congress, belongs the power to make laws; to the executive branch
ofgovernment, through the President,
belongs the power to enforce laws; and to the judicial branch ofgovernment, through
the Court,

belongs the power to interpret laws. Because the three great powershave been, by
constitutional design, ordained in this respect, "each department of the government
hasexclusive cognizance of matters within its jurisdiction, and is supreme within its
own sphere."

Thus, "thelegislature has no authority to execute or construe the law, the executive has
no authority to make orconstrue the law, and the judiciary has no power to make or
execute the law." The principle ofseparation of powers and its concepts of autonomy
and independence stem from the notion that thepowers of government must be divided
to avoid concentration of these powers in any one branch; thedivision, it is hoped,
would avoid any single branch from lording its power over the other branches or

the citizenry. To achieve this purpose, the divided power must be wielded by co-equal
branches ofgovernment that are equally capable of independent action in exercising
their respective mandates.Lack of independence would result in the inability of one
branch of government to check the arbitrary orself-interest assertions of another or
others.

In the cases at bar, the Court observes that the 2013 PDAF Article, insofar as it confers
post-enactmentidentification authority to individual legislators, violates the principle of
non-delegability since saidlegislators are effectively allowed to individually exercise the
power of appropriation, which

as settledin Philconsa

is lodged in Congress. That the power to appropriate must be exercised only


throughlegislation is clear from Section 29(1), Article VI of the 1987 Constitution which
states that: "No moneyshall be paid out of the Treasury except in pursuance of an
appropriation made by law." To understandwhat constitutes an act of appropriation, the
Court, in Bengzon v. Secretary of Justice and InsularAuditor

(Bengzon), held that the power of appropriation involves (a) the setting apart by law of a
certainsum from the public revenue for (b) a specified purpose. Essentially, under the
2013 PDAF Article,individual legislators are given a personal lump-sum fund from
which they are able to dictate (a) howmuch from such fund would go to (b) a specific
project or beneficiary that they themselves alsodetermine. As these two (2) acts
comprise the exercise of the power of appropriation as described inBengzon, and given
that the 2013 PDAF Article authorizes individual legislators to perform the
same,undoubtedly, said legislators have been conferred the power to legislate which
the Constitution doesnot, however, allow. Thus, keeping with the principle of
non-delegability of legislative power, the Courthereby declares the 2013 PDAF Article,
as well as all other forms of Congressional Pork Barrel whichcontain the similar
legislative identification feature as herein discussed, as unconstitutional.

Parens Patriae

As to the doctrine of parens patriae . The doctrine refers to the inherent power and authority of the state to provide
protection of the person and property of a person non sui juries. Under that doctrine, the state has the sovereign power
of guardianship over persons under disability. Thus, the state is considered the parens patriae of minors.
DOCTRINE OF CONSTITUTIONAL SUPREMACY

Under this doctrine, if a law or contract violates any norm of the Constitution, that law or contract, whether promulgated
by the legislative or by the executive branch or entered into by private persons for private purposes, is null and void and
without any force and effect. Thus, since the Constitution is the fundamental, paramount and supreme law of the nation,
it is deemed written in every statute and contract. (Manila Prince Hotel v. GSIS, G.R. No. 122156, Feb. 3, 1997)

Justice Isagani A. Cruz eloquently expound the essence of this great doctrine in this wise:

“The Constitution is the basic and paramount law to which all other laws must conform and to which all persons,
including the highest officials of the land, must defer. No act shall be valid, however nobly intentioned, if it conflicts with
the Constitution. The Constitution must ever remain supreme. All must bow to the mandate of this law. Expediency
must not be allowed to sap its strength nor greed for power debase its rectitude. Right or wrong, the Constitution must
be upheld as long as it has not been changed by the sovereign people lest its disregard result in the usurpation of the
majesty of the law by the pretenders to illegitimate power.”

stare decisis

The doctrine of stare decisis is one of policy grounded on the necessity for securing certainty and stability of judicial
decisions, thus:

“Time and again, the Court has held that it is a very desirable and necessary judicial practice that when a court has laid
down a principle of law as applicable to a certain state of facts, it will adhere to that principle and apply it to all future
cases in which the facts are substantially the same. Stare decisis et non quieta movere. Stand by the decisions and
disturb not what is settled. Stare decisis simply means that for the sake of certainty, a conclusion reached in
one case should be applied to those that follow if the facts are substantially the same, even though the parties
may be different. It proceeds from the first principle of justice that, absent any powerful countervailing considerations,
like cases ought to be decided alike. Thus, where the same questions relating to the same event have been put forward
by the parties similarly situated as in a previous case litigated and decided by a competent court, the rule of stare
decisis is a bar to any attempt to relitigate the same.”

Eminent domain

Appropriation is the taking of private property for public use under the power of eminent domain. It is the power of the
state to appropriate property for public use, upon payment of just compensation.

In general, eminent domain is defined as “the power of the nation or a sovereign state to take, or to authorize the taking of,
private property for a public use without the owner’s consent, conditioned upon payment of just compensation.” it is
acknowledged as “an inherent political right, founded on a common necessity and interest of appropriating the property of
individual members of the community to the great necessities of the whole community.”

How the Philippine Government Is Organized


The Philippines is a republic with a presidential form of government wherein power is equally
divided among its three branches: executive, legislative, and judicial.

 The Legislative branch is authorized to make laws, alter, and repeal them through the
power vested in the Philippine Congress. This institution is divided into the Senate and the
House of Representatives.
 The Executive branch carries out laws. It is composed of the President and the Vice
President who are elected by direct popular vote and serve a term of six years. The
Constitution grants the President authority to appoint his Cabinet. These departments
form a large portion of the country’s bureaucracy.
 The Judicial branch evaluates laws. It holds the power to settle controversies involving
rights that are legally demandable and enforceable. This branch determines whether or
not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction
on the part and instrumentality of the government. It is made up of a Supreme Court and
lower courts.

Judicial Department

The judicial branch interprets the meaning of laws, applies laws to individual cases, and decides if laws violate the Constitution. The
judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government. The judicial branch interprets the meaning of laws,
applies laws to individual cases, and decides if laws violate the Constitution.

- The judicial power is vested in the Supreme Court of the Philippines and lower courts established by
law. The Supreme Court, which has a Chief Justice as its head and 14 Associate Justices, occupies the
highest tier of the judiciary.

ARTICLE VIII. THE JUDICIAL DEPARTMENT

Scope:

1. Judicial power is the authority to settle justiciable controversies or disputes involving rights that are enforceable
and demandable before the courts of justice or the redress of wrongs for violations of such rights.

2. Vested in the Supreme Court and such lower courts as may be established by law.

3. Since the courts are given ‘judicial power’ and nothing more, courts may neither attempt to assume or be
compelled to perform non-judicial functions. They may not be charged with administrative functions except when
reasonably incidental to the fulfillment of their duties.

4. In order that courts may exercise this power, there must exist the following:

1. An actual controversy with legally demandable and enforceable rights;


2. Involving real parties in interest;
3. The exercise of such power will bind the parties by virtue of the court’s application of existing laws.
5. Judicial power cannot be exercised in vacuum. Without any laws from which rights arise and which are violated,
there can be no recourse to the courts.

6. The courts cannot be asked for advisory opinions.

7. Judicial power includes:

1. The duty of the courts to settle actual controversies involving rights which are legally demandable and
enforceable; and
1. To determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the government.

Political Questions:

1. A ‘political question’ is one the resolution of which has been vested by the Constitution exclusively in either the
people, in the exercise of their sovereign capacity, or in which full discretionary authority has been delegated to a
co-equal branch of the Government.

2. Thus, while courts can determine questions of legality with respect to governmental action, they cannot review
government policy and the wisdom thereof, for these questions have been vested by the Constitution in the Executive
and Legislative Departments.

SEPARATION OF POWERS

Meaning of the Doctrine

The Doctrine of Separation of Powers entails: first, the division of the powers of the government into three, which are
legislative, executive, and judicial; and second, the distribution of these powers to the three major branches of the
government, which are the Legislative Department, Executive Department, and the Judicial Department. Basically, it
means that the Legislative Department is generally limited to the enactment of the law and not to implementation or
interpretation of the same; the Executive Department is generally limited to the implementation of the law and not to
the enactment or interpretation of the same; and the Judicial Department is generally limited to the interpretation and
application of laws in specific cases and not to the making or implementation of the same.

Purpose of the Doctrine


Prevention of Monopoly of Power. Separation of powers is said to be an attribute of republicanism, in that, among
other reasons, it seeks to prevent monopoly or concentration of power to one person or group of persons, and thereby
forestalls dictatorship or despotism. Sovereignty resides in the people, and it should remain that way. Government
officials, who are the representatives of the people, must exercise the powers of their office in the interest of the public.
While representational exercise of power brings out the essence of republicanism, too much concentration of power
rips it apart, as was experienced some administrations.
Separation not Exclusive
Important to understand is the meaning of “separation” not as exclusivity but as “collaboration.” While each of the
Departments exercises its respective power, it does so in collaboration with the other Departments because in the end
they all belong to one unified government with a common purpose. Appointment, for example, of Members of the
Supreme Court by the President must be upon the recommendation of the Judicial and Bar Council. In here before the
President, who belongs to the executive branch, appoint a Supreme Court justice, a recommendation must first be
given to him by the JBC, which is an independent body in the judiciary. Another example would be the use of public
funds. In here, the President prepares the budget, on the basis of which the Congress enacts an appropriations bill
which will then be submitted and approved by the President.
Checks and Balances

From the examples above one can understand the corollary doctrine of “checks and balances.” Under the doctrine,
there is no absolute separation of the three branches of the government, but to maintain their coequality each
department checks the power of the others. Generally, the departments cannot encroach each others’ power, but
constitutional mechanisms allow each one of them to perform acts that would check the power of others to prevent
monopoly, concentration, and abuse of power. For example, the Judicial and Bar Council recommends nominees to
the President so that the latter will not capriciously appoint someone whom he can easily convert into a puppet and
thereby become his medium to control the judiciary. In the same way, the disbursement of public funds cannot depend
solely upon the discretion of the President, but must be based on legislation by the Congress.

Essential requisites for judicial review


Before proceeding to resolve the issue of the constitutionality of Executive Order No. 1, the Court
needs to ascertain whether the requisites for a valid exercise of its power of judicial review are
present.

Like almost all powers conferred by the Constitution, the power of judicial review is subject to
limitations, to wit: (1) there must be an actual case or controversy calling for the
exercise of judicial power; (2) the person challenging the act must have the standing to
question the validity of the subject act or issuance; otherwise stated, he must have a personal and
substantial interest in the case such that he has sustained, or will sustain, direct injury as a result
of its enforcement; (3) the question of constitutionality must be raised at the earliest opportunity;
and (4) the issue of constitutionality must be the very lis mota of the case.

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