EN BANC

[G.R. No. 149036. April 2, 2002]

MA. J. ANGELINA G. MATIBAG, petitioner, vs. ALFREDO L. BENIA!O, RE"#RRE$$ION %.
BORRA, FLORENTINO A. T#A"ON, JR., &ELMA J. $IN$O, '() GIDEON $. DE G#%MAN
i( *i+ ,'p',i-. '+ O//i,0r1I(1$*'r20, Fi('(,0 "0r3i,0+ D0p'r-40(- o/ -*0 $o44i++io( o(
El0,-io(+, respondents.
D E $ I " I O N
$ARIO, J.5
T*0 $'+0
Before us is an original Petition for Prohibition with prayer for the issuance of a writ of preliminary
injunction and a temporary restraining order under Rule 65 of the !!" Rules of Ci#il Procedure$ Petitioner %a$
&$ Angelina '$ %atibag ()Petitioner* for bre#ity+ ,uestions the constitutionality of the appointment and the right to
hold office of the following- (+ Alfredo .$ Benipayo ()Benipayo* for bre#ity+ as Chairman of the Commission
on Elections ()C/%E.EC* for bre#ity+0 and (1+ Resurreccion 2$ Borra ()Borra* for bre#ity+ and 3lorentino A$
4uason5 &r$ ()4uason* for bre#ity+ as C/%E.EC Commissioners$ Petitioner also ,uestions the legality of the
appointment of 6elma &$ Cinco78 ()Cinco* for bre#ity+ as 9irector :6 of the C/%E.EC;s Education and
:nformation 9epartment ()E:9* for bre#ity+$
T*0 F',-+
/n 3ebruary 15 !!!5 the C/%E.EC en banc appointed petitioner as )Acting 9irector :6* of the E:9$ /n
3ebruary 55 1<<<5 then Chairperson =arriet /$ 9emetriou renewed the appointment of petitioner as 9irector :6
of E:9 in a )4emporary* capacity$ /n 3ebruary 55 1<<5 Commissioner Rufino >$B$ &a#ier renewed again the
appointment of petitioner to the same position in a )4emporary* capacity$718
/n %arch 115 1<<5 President 'loria %acapagal Arroyo appointed5 ad interim5 Benipayo as C/%E.EC
Chairman57?8 and Borra7@8 and 4uason758 as C/%E.EC Commissioners5 each for a term of se#en years and all
eApiring on 3ebruary 15 1<<B$ Benipayo tooC his oath of office and assumed the position of C/%E.EC
Chairman$ Borra and 4uason liCewise tooC their oaths of office and assumed their positions as C/%E.EC
Commissioners$ 4he /ffice of the President submitted to the Commission on Appointments on %ay 115 1<< the
ad interim appointments of Benipayo5 Borra and 4uason for confirmation$768 =owe#er5 the Commission on
Appointments did not act on said appointments$
/n &une 5 1<<5 President Arroyo renewed the ad interim appointments of Benipayo5 Borra and 4uason to
the same positions and for the same term of se#en years5 eApiring on 3ebruary 15 1<<B$7"8 4hey tooC their oaths of
office for a second time$ 4he /ffice of the President transmitted on &une 55 1<< their appointments to the
Commission on Appointments for confirmation$7B8
Congress adjourned before the Commission on Appointments could act on their appointments$ 4hus5 on
&une B5 1<<5 President %acapagal Arroyo renewed again the ad interim appointments of Benipayo5 Borra and
4uason to the same positions$7!8 4he /ffice of the President submitted their appointments for confirmation to the
Commission on Appointments$7<8 4hey tooC their oaths of office anew$
:n his capacity as C/%E.EC Chairman5 Benipayo issued a %emorandum dated April 5 1<<78
addressed to petitioner as 9irector :6 of the E:9 and to Cinco as 9irector ::: also of the E:95 designating Cinco
/fficerDinDCharge of the E:9 and reassigning petitioner to the .aw 9epartment$ C/%E.EC E:9 CommissionerD
inDCharge %ehol E$ >adain objected to petitioner;s reassignment in a %emorandum dated April @5 1<<718
addressed to the C/%E.EC en banc. >pecifically5 Commissioner >adain ,uestioned Benipayo;s failure to consult
the CommissionerDinDCharge of the E:9 in the reassignment of petitioner$
/n April 65 1<<5 petitioner re,uested Benipayo to reconsider her relief as 9irector :6 of the E:9 and her
reassignment to the .aw 9epartment$7?8 Petitioner cited Ci#il >er#ice Commission %emorandum Circular No$ "
dated April <5 1<<5 reminding heads of go#ernment offices that )transfer and detail of employees are prohibited
during the election period beginning &anuary 1 until &une ?5 1<<$* Benipayo denied her re,uest for
reconsideration on April B5 1<<57@8 citing C/%E.EC Resolution No$ ??<< dated No#ember 65 1<<<5 which
states in part-
)N/F5 4=ERE3/RE5 the Commission on Elections by #irtue of the powers conferred upon it by the
Constitution5 the /mnibus Election Code and other election laws5 as an eAception to the foregoing prohibitions5
has RE>/.6E95 as it is hereby RE>/.6E95 to appoint5 hire new employees or fill new positions and transfer or
reassign its personnel5 when necessary in the effecti#e performance of its mandated functions during the
prohibited period5 pro#ided that the changes in the assignment of its field personnel within the thirtyDday period
before election day shall be effected after due notice and hearing$*
Petitioner appealed the denial of her re,uest for reconsideration to the C/%E.EC en banc in a
%emorandum dated April 1?5 1<<$758 Petitioner also filed an administrati#e and criminal complaint768 with
the .aw 9epartment7"8 against Benipayo5 alleging that her reassignment #iolated >ection 16 (h+ of the
/mnibus Election Code5 C/%E.EC Resolution No$ ?15B5 Ci#il >er#ice %emorandum Circular No$ <"5 s$ <<5
and other pertinent administrati#e and ci#il ser#ice laws5 rules and regulations$
9uring the pendency of her complaint before the .aw 9epartment5 petitioner filed the instant petition
,uestioning the appointment and the right to remain in office of Benipayo5 Borra and 4uason5 as Chairman and
Commissioners of the C/%E.EC5 respecti#ely$ Petitioner claims that the ad interim appointments of
Benipayo5 Borra and 4uason #iolate the constitutional pro#isions on the independence of the C/%E.EC5 as well
as on the prohibitions on temporary appointments and reappointments of its Chairman and members$ Petitioner
also assails as illegal her remo#al as 9irector :6 of the E:9 and her reassignment to the .aw 9epartment$
>imultaneously5 petitioner challenges the designation of Cinco as /fficerDinDCharge of the E:9$ Petitioner5
moreo#er5 ,uestions the legality of the disbursements made by C/%E.EC 3inance >er#ices 9epartment /fficerD
inDCharge 'ideon C$ 9e 'uGman to Benipayo5 Borra and 4uason by way of salaries and other emoluments$
:n the meantime5 on >eptember 65 1<<5 President %acapagal Arroyo renewed once again the ad interim
appointments of Benipayo as C/%E.EC Chairman and Borra and 4uason as Commissioners5 respecti#ely5 for a
term of se#en years eApiring on 3ebruary 15 1<<B$7B8 4hey all tooC their oaths of office anew$
T*0 I++60+
4he issues for resolution of this Court are as follows-
$ Fhether or not the instant petition satisfies all the re,uirements before this Court may eAercise its
power of judicial re#iew in constitutional cases0
1$ Fhether or not the assumption of office by Benipayo5 Borra and 4uason on the basis of the ad
interim appointments issued by the President amounts to a temporary appointment prohibited by
>ection (1+5 Article :HDC of the Constitution0
?$ Assuming that the first ad interim appointments and the first assumption of office by Benipayo5
Borra and 4uason are legal5 whether or not the renewal of their ad interim appointments and
subse,uent assumption of office to the same positions #iolate the prohibition on reappointment
under >ection (1+5 Article :HDC of the Constitution0
@$ Fhether or not Benipayo;s remo#al of petitioner from her position as 9irector :6 of the E:9 and
her reassignment to the .aw 9epartment is illegal and without authority5 ha#ing been done
without the appro#al of the C/%E.EC as a collegial body0
5$ Fhether or not the /fficerDinDCharge of the C/%E.EC;s 3inance >er#ices 9epartment5 in
continuing to maCe disbursements in fa#or of Benipayo5 Borra5 4uason and Cinco5 is acting in
eAcess of jurisdiction$
First Issue: Propriety of Judicial Review
Respondents assert that the petition fails to satisfy all the four re,uisites before this Court may eAercise its
power of judicial re#iew in constitutional cases$ /ut of respect for the acts of the EAecuti#e department5 which
is coDe,ual with this Court5 respondents urge this Court to refrain from re#iewing the constitutionality of the ad
interim appointments issued by the President to Benipayo5 Borra and 4uason unless all the four re,uisites are
present$ 4hese are- (+ the eAistence of an actual and appropriate contro#ersy0 (1+ a personal and substantial
interest of the party raising the constitutional issue0 (?+ the eAercise of the judicial re#iew is pleaded at the earliest
opportunity0 and (@+ the constitutional issue is the lis mota of the case$7!8
Respondents argue that the second5 third and fourth re,uisites are absent in this case$ Respondents
maintain that petitioner does not ha#e a personal and substantial interest in the case because she has not sustained
a direct injury as a result of the ad interim appointments of Benipayo5 Borra and 4uason and their assumption of
office$ Respondents point out that petitioner does not claim to be lawfully entitled to any of the positions assumed
by Benipayo5 Borra or 4uason$ Neither does petitioner claim to be directly injured by the appointments of these
three respondents$
Respondents also contend that petitioner failed to ,uestion the constitutionality of the ad interim
appointments at the earliest opportunity$ Petitioner filed the petition only on August ?5 1<< despite the fact that
the ad interim appointments of Benipayo5 Borra and 4uason were issued as early as %arch 115 1<<$ %oreo#er5
the petition was filed after the third time that these three respondents were issued ad interim appointments$
Respondents insist that the real issue in this case is the legality of petitioner;s reassignment from the E:9 to
the .aw 9epartment$ Conse,uently5 the constitutionality of the ad interim appointments is not the lis mota of this
case$
Fe are not persuaded$
Benipayo reassigned petitioner from the E:95 where she was Acting 9irector5 to the .aw 9epartment5
where she was placed on detail ser#ice$71<8 Respondents claim that the reassignment was 7pursuant to x x x
Benipayos authority as Chairman of the Commission on lections, and as the Commissions Chief xecutive
!fficer.8718 E#idently5 respondents anchor the legality of petitioner;s reassignment on Benipayo;s authority as
Chairman of the C/%E.EC$ 4he real issue then turns on whether or not Benipayo is the lawful Chairman of the
C/%E.EC$ E#en if petitioner is only an Acting 9irector of the E:95 her reassignment is without legal basis if
Benipayo is not the lawful C/%E.EC Chairman5 an office created by the Constitution$
/n the other hand5 if Benipayo is the lawful C/%E.EC Chairman because he assumed office in
accordance with the Constitution5 then petitioner;s reassignment is legal and she has no cause to complain
pro#ided the reassignment is in accordance with the Ci#il >er#ice .aw$ Clearly5 petitioner has a personal and
material staCe in the resolution of the constitutionality of Benipayo;s assumption of office$ Petitioner;s personal
and substantial injury5 if Benipayo is not the lawful C/%E.EC Chairman5 clothes her with the re,uisite locus
standi to raise the constitutional issue in this petition$
Respondents harp on petitioner;s belated act of ,uestioning the constitutionality of the ad interim
appointments of Benipayo5 Borra and 4uason$ Petitioner filed the instant petition only on August ?5 1<<5 when
the first ad interim appointments were issued as early as %arch 115 1<<$ =owe#er5 it is not the date of filing of
the petition that determines whether the constitutional issue was raised at the earliest opportunity$ 4he earliest
opportunity to raise a constitutional issue is to raise it in the pleadings before a competent court that can resol#e
the same5 such that5 )if it is not raised in the pleadings5 it cannot be considered at the trial5 and5 if not considered at
the trial5 it cannot be considered on appeal$*7118 Petitioner ,uestioned the constitutionality of the ad interim
appointments of Benipayo5 Borra and 4uason when she filed her petition before this Court5 which is the earliest
opportunity for pleading the constitutional issue before a competent body$ 3urthermore5 this Court may
determine5 in the eAercise of sound discretion5 the time when a constitutional issue may be passed upon$71?8 4here
is no doubt petitioner raised the constitutional issue on time$
%oreo#er5 the legality of petitioner;s reassignment hinges on the constitutionality of Benipayo;s ad interim
appointment and assumption of office$ Inless the constitutionality of Benipayo;s ad interim appointment and
assumption of office is resol#ed5 the legality of petitioner;s reassignment from the E:9 to the .aw 9epartment
cannot be determined$ Clearly5 the lis mota of this case is the #ery constitutional issue raised by petitioner$
:n any e#ent5 the issue raised by petitioner is of paramount importance to the public$ 4he legality of the
directi#es and decisions made by the C/%E.EC in the conduct of the %ay @5 1<< national elections may be
put in doubt if the constitutional issue raised by petitioner is left unresol#ed$ :n Ceeping with this Court;s duty to
determine whether other agencies of go#ernment ha#e remained within the limits of the Constitution and ha#e not
abused the discretion gi#en them5 this Court may e#en brush aside technicalities of procedure and resol#e any
constitutional issue raised$71@8 =ere the petitioner has complied with all the re,uisite technicalities$ %oreo#er5
public interest re,uires the resolution of the constitutional issue raised by petitioner$
"econd Issue: #he $ature of an %d Interim %ppointment
Petitioner argues that an ad interim appointment to the C/%E.EC is a temporary appointment that is
prohibited by >ection (1+5 Article :HDC of the Constitution5 which pro#ides as follows-
4he Chairman and the Commissioners shall be appointed by the President with the consent of the Commission
on Appointments for a term of se#en years without reappointment$ /f those first appointed5 three %embers shall
hold office for se#en years5 two %embers for fi#e years5 and the last %embers for three years5 without
reappointment$ Appointment to any #acancy shall be only for the uneApired term of the predecessor$ In no case
shall any &em'er 'e appointed or desi(nated in a temporary or actin( capacity$* (Emphasis supplied+
Petitioner posits the #iew that an ad interim appointment can be withdrawn or re#oCed by the President at her
pleasure5 and can e#en be disappro#ed or simply byDpassed by the Commission on Appointments$ 3or this reason5
petitioner claims that an ad interim appointment is temporary in character and conse,uently prohibited by the last
sentence of >ection (1+5 Article :HDC of the Constitution$
Based on petitioner;s theory5 there can be no ad interim appointment to the C/%E.EC or to the other two
constitutional commissions5 namely the Ci#il >er#ice Commission and the Commission on Audit$ 4he last
sentence of >ection (1+5 Article :HDC of the Constitution is also found in Article :HDB and Article :HD9
pro#iding for the creation of the Ci#il >er#ice Commission and the Commission on Audit5 respecti#ely$
Petitioner interprets the last sentence of >ection (1+ of Article :HDC to mean that the ad interim appointee cannot
assume office until his appointment is confirmed by the Commission on Appointments for only then does his
appointment become permanent and no longer temporary in character$
4he rationale behind petitioner;s theory is that only an appointee who is confirmed by the Commission on
Appointments can guarantee the independence of the C/%E.EC$ A confirmed appointee is beyond the influence
of the President or members of the Commission on Appointments since his appointment can no longer be recalled
or disappro#ed$ Prior to his confirmation5 the appointee is at the mercy of both the appointing and confirming
powers since his appointment can be terminated at any time for any cause$ :n the words of petitioner5 a >word of
9amocles hangs o#er the head of e#ery appointee whose confirmation is pending with the Commission on
Appointments$
Fe find petitioner;s argument without merit$
An ad interim appointment is a permanent appointment because it taCes effect immediately and can no
longer be withdrawn by the President once the appointee has ,ualified into office$ 4he fact that it is subject to
confirmation by the Commission on Appointments does not alter its permanent character$ 4he Constitution itself
maCes an ad interim appointment permanent in character by maCing it effecti#e until disappro#ed by the
Commission on Appointments or until the neAt adjournment of Congress$ 4he second paragraph of >ection 65
Article 6:: of the Constitution pro#ides as follows-
)4he President shall ha#e the power to maCe appointments during the recess of the Congress5 whether #oluntary
or compulsory5 but such appointments shall be effective only until disappro#al by the Commission on
Appointments or until the neAt adjournment of the Congress$* (Emphasis supplied+
4hus5 the ad interim appointment remains effective until such disappro#al or neAt adjournment5 signifying that it
can no longer be withdrawn or re#oCed by the President$ 4he fear that the President can withdraw or re#oCe at
any time and for any reason an ad interim appointment is utterly without basis$
%ore than half a century ago5 this Court had already ruled that an ad interim appointment is permanent in
character$ :n Summers vs. Ozaeta,7158 decided on /ctober 155 !@B5 we held that-
)A A A an ad interim appointment is one made in pursuance of paragraph (@+5 >ection <5 Article 6:: of the
Constitution5 which pro#ides that the JPresident shall ha#e the power to maCe appointments during the recess of
the Congress5 but such appointments shall be effecti#e only until disappro#al by the Commission on
Appointments or until the neAt adjournment of the Congress$; It is an appointment permanent in nature, and
the circumstance that it is su')ect to confirmation 'y the Commission on %ppointments does not alter its
permanent character. An ad interim appointment is disappro#ed certainly for a reason other than that its
pro#isional period has eApired$ >aid appointment is of course distinguishable from an Jacting; appointment which
is merely temporary5 good until another permanent appointment is issued$* (Emphasis supplied+
4he Constitution imposes no condition on the effecti#ity of an ad interim appointment5 and thus an ad
interim appointment taCes effect immediately$ 4he appointee can at once assume office and eAercise5 as a de jure
officer5 all the powers pertaining to the office$ :n Pacete vs. Secretary of the Commission on Appointments,7168
this Court elaborated on the nature of an ad interim appointment as follows-
)A distinction is thus made between the eAercise of such presidential prerogati#e re,uiring confirmation by the
Commission on Appointments when Congress is in session and when it is in recess$ :n the former5 the President
nominates5 and only upon the consent of the Commission on Appointments may the person thus named assume
office$ It is not so with reference to ad interim appointments* It ta+es effect at once* #he individual chosen may
thus ,ualify and perform his function without loss of time* -is title to such office is complete. :n the language
of the Constitution5 the appointment is effecti#e Juntil disappro#al by the Commission on Appointments or until
the neAt adjournment of the Congress$;*
Petitioner cites BlacC;s .aw 9ictionary which defines the term )ad interim* to mean )in the meantime* or
)for the time being$* =ence5 petitioner argues that an ad interim appointment is undoubtedly temporary in
character$ 4his argument is not new and was answered by this Court in Pamantasan ng ungsod ng !aynila vs.
"ntermediate Appellate Court,71"8 where we eAplained that-
)A A A 3rom the arguments5 it is easy to see why the petitioner should eAperience difficulty in understanding the
situation$ Pri#ate respondent had been eAtended se#eral Jad interim; appointments which petitioner mistaCenly
understands as appointments temporary in nature$ Perhaps5 it is the literal translation of the word Jad interim;
which creates such belief$ 4he term is defined by BlacC to mean )in the meantime* or )for the time being*$ 4hus5
an officer ad interim is one appointed to fill a #acancy5 or to discharge the duties of the office during the absence
or temporary incapacity of its regular incumbent (BlacC;s .aw 9ictionary5 Re#ised 3ourth Edition5 !"B+$ But
such is not the meaning nor the use intended in the conteAt of Philippine law$ :n referring to 9r$ Esteban;s
appointments5 the term is not descripti#e of the nature of the appointments gi#en to him$ Rather, it is used to
denote the manner in which said appointments were made, that is, done 'y the President of the Pamantasan in
the meantime, while the Board of Re(ents, which is ori(inally vested 'y the .niversity Charter with the power
of appointment, is una'le to act. A A A$* (Emphasis supplied+
4hus5 the term )ad interim appointment*5 as used in letters of appointment signed by the President5 means a
permanent appointment made by the President in the meantime that Con(ress is in recess. :t does not mean a
temporary appointment that can be withdrawn or re#oCed at any time$ 4he term5 although not found in the teAt
of the Constitution5 has ac,uired a definite legal meaning under Philippine jurisprudence$ 4he Court had again
occasion to eAplain the nature of an ad interim appointment in the more recent case of !arohombsar vs. Court of
Appeals,71B8 where the Court stated-
)Fe ha#e already mentioned that an ad interim appointment is not descripti#e of the nature of the appointment5
that is5 it is not indicati#e of whether the appointment is temporary or in an acting capacity5 rather it denotes the
manner in which the appointment was made$ :n the instant case5 the appointment eAtended to pri#ate respondent
by then %>I President Alonto5 &r$ was issued without condition nor limitation as to tenure$ 4he permanent status
of pri#ate respondent;s appointment as EAecuti#e Assistant :: was recogniGed and attested to by the Ci#il >er#ice
Commission Regional /ffice No$ 1$ Petitioners su'mission that private respondents ad interim appointment
is synonymous with a temporary appointment which could 'e validly terminated at any time is clearly
untena'le* %d interim appointments are permanent 'ut their terms are only until the Board disapproves them.*
(Emphasis supplied+
An ad interim appointee who has ,ualified and assumed office becomes at that moment a go#ernment
employee and therefore part of the ci#il ser#ice$ =e enjoys the constitutional protection that *7n8o officer or
employee in the ci#il ser#ice shall be remo#ed or suspended eAcept for cause pro#ided by law$*71!8 4hus5 an ad
interim appointment becomes complete and irre#ocable once the appointee has ,ualified into office$ 4he
withdrawal or re#ocation of an ad interim appointment is possible only if it is communicated to the appointee
before the moment he ,ualifies5 and any withdrawal or re#ocation thereafter is tantamount to remo#al from office$
7?<8 /nce an appointee has ,ualified5 he ac,uires a legal right to the office which is protected not only by statute
but also by the Constitution$ =e can only be remo#ed for cause5 after notice and hearing5 consistent with the
re,uirements of due process$
An ad interim appointment can be terminated for two causes specified in the Constitution$ 4he first cause is
the disappro#al of his ad interim appointment by the Commission on Appointments$ 4he second cause is the
adjournment of Congress without the Commission on Appointments acting on his appointment$ 4hese two causes
are resolutory conditions eApressly imposed by the Constitution on all ad interim appointments$ 4hese resolutory
conditions constitute5 in effect5 a >word of 9amocles o#er the heads of ad interim appointees$ No one5 howe#er5
can complain because it is the Constitution itself that places the >word of 9amocles o#er the heads of the ad
interim appointees$
Fhile an ad interim appointment is permanent and irre#ocable eAcept as pro#ided by law5 an appointment
or designation in a temporary or acting capacity can be withdrawn or re#oCed at the pleasure of the appointing
power$7?8 A temporary or acting appointee does not enjoy any security of tenure5 no matter how briefly$ 4his is
the Cind of appointment that the Constitution prohibits the President from maCing to the three independent
constitutional commissions5 including the C/%E.EC$ 4hus5 in #rillantes vs. $orac,7?18 this Court strucC down
as unconstitutional the designation by then President CoraGon A,uino of Associate Commissioner =aydee
Korac as Acting Chairperson of the C/%E.EC$ 4his Court ruled that-
)A designation as Acting Chairman is by its #ery terms essentially temporary and therefore
re#ocable at will$ No cause need be established to justify its re#ocation$ Assuming its #alidity5 the
designation of the respondent as Acting Chairman of the Commission on Elections may be
withdrawn by the President of the Philippines at any time and for whate#er reason she sees fit$ :t is
doubtful if the respondent5 ha#ing accepted such designation5 will not be estopped from challenging
its withdrawal$
A A A
4he Constitution pro#ides for many safeguards to the independence of the Commission on
Elections5 foremost among which is the security of tenure of its members$ 4hat guarantee is not
a#ailable to the respondent as Acting Chairman of the Commission on Elections by designation of
the President of the Philippines$*
Earlier5 in %acionalista Party vs. #autista,7??8 a case decided under the !?5 Constitution5 which did not
ha#e a pro#ision prohibiting temporary or acting appointments to the C/%E.EC5 this Court ne#ertheless
declared unconstitutional the designation of the >olicitor 'eneral as acting member of the C/%E.EC$ 4his
Court ruled that the designation of an acting Commissioner would undermine the independence of the C/%E.EC
and hence #iolate the Constitution$ Fe declared then- ):t would be more in Ceeping with the intent5 purpose and
aim of the framers of the Constitution to appoint a permanent Commissioner than to designate one to act
temporarily$* (Emphasis supplied+
:n the instant case5 the President did in fact appoint permanent Commissioners to fill the #acancies in the
C/%E.EC5 subject only to confirmation by the Commission on Appointments$ Benipayo5 Borra and 4uason
were eAtended permanent appointments during the recess of Congress$ 4hey were not appointed or designated in
a temporary or acting capacity5 unliCe Commissioner =aydee Korac in #rillantes vs. $orac7?@8 and >olicitor
'eneral 3eliA Bautista in %acionalista Party vs. #autista$7?58 4he ad interim appointments of Benipayo5 Borra
and 4uason are eApressly allowed by the Constitution which authoriGes the President5 during the recess of
Congress5 to maCe appointments that taCe effect immediately$
Fhile the Constitution mandates that the C/%E.EC )shall be independent*7?685 this pro#ision should be
harmoniGed with the President;s power to eAtend ad interim appointments$ 4o hold that the independence of the
C/%E.EC re,uires the Commission on Appointments to first confirm ad interim appointees before the
appointees can assume office will negate the President;s power to maCe ad interim appointments$ 4his is contrary
to the rule on statutory construction to gi#e meaning and effect to e#ery pro#ision of the law$ :t will also run
counter to the clear intent of the framers of the Constitution$
4he original draft of >ection 65 Article 6:: of the Constitution D on the nomination of officers subject to
confirmation by the Commission on Appointments D did not pro#ide for ad interim appointments$ 4he original
intention of the framers of the Constitution was to do away with ad interim appointments because the plan was for
Congress to remain in session throughout the year eAcept for a brief ?<Dday compulsory recess$ =owe#er5
because of the need to a#oid disruptions in essential go#ernment ser#ices5 the framers of the Constitution thought
it wise to reinstate the pro#isions of the !?5 Constitution on ad interim appointments$ 4he following discussion
during the deliberations of the Constitutional Commission elucidates this-
)3R$ BERNA>- H A A our compulsory recess now is only ?< days$ >o under such circumstances5 is it necessary to
pro#ide for ad interim appointmentsL Perhaps there should be a little discussion on that$
A A A
%>$ AMI:N/- %y concern is that unless this problem is addressed5 this mi(ht present pro'lems in terms of
anticipatin( interruption of (overnment 'usiness5 considering that we are not certain of the length of in#oluntary
recess or adjournment of the Congress$ Fe are certain5 howe#er5 of the in#oluntary adjournment of the Congress
which is ?< days5 but we cannot lea#e to conjecture the matter of in#oluntary recess$
3R$ BERNA>- 4hat is correct5 but we are trying to looC for a formula$ : wonder if the Commissioner has a
formula A A A$
A A A
%R$ BEN'2/N- %adam President5 apropos of the matter raised by Commissioner A,uino and after conferring
with the Committee5 Commissioner A,uino and : propose the following amendment as the last paragraph of
>ection 65 the wordings of which are in the !?5 Constitution- 4=E PRE>:9EN4 >=A.. =A6E 4=E P/FER
4/ %AEE APP/:N4%EN4> 9IR:N' 4=E RECE>> /3 C/N'RE>> F=E4=ER :4 BE 6/.IN4ARK /R
C/%PI.>/RK BI4 >IC= APP/:N4%EN4> >=A.. BE E33EC4:6E /N.K IN4:. 9:>APPR/6A. BK
4=E C/%%:>>:/N /N APP/:N4%EN4> /R IN4:. 4=E NEH4 A9&/IRN%EN4 /3 4=E C/N'RE>>$
4his is otherwise called the ad interim appointments$
A A A
4=E PRE>:9EN4- :s there any objection to the proposed amendment of Commissioners A,uino and BengGon5
adding a paragraph to the last paragraph of >ection 6L (Silence+ 4he Chair hears none0 the amendment is
appro#ed$*7?"8 (Emphasis supplied+
Clearly5 the reinstatement in the present Constitution of the ad interim appointing power of the President
was for the purpose of a#oiding interruptions in #ital go#ernment ser#ices that otherwise would result from
prolonged #acancies in go#ernment offices5 including the three constitutional commissions$ :n his concurring
opinion in &uevara vs. "nocentes57?B8 decided under the !?5 Constitution5 &ustice Roberto Concepcion5 &r$
eAplained the rationale behind ad interim appointments in this manner-
)Now5 why is the lifetime of ad interim appointments so limitedL Because5 if they eApired before the session of
Congress5 the evil sou(ht to 'e avoided / interruption in the dischar(e of essential functions N may taCe place$
Because the same e#il would result if the appointments ceased to be effecti#e during the session of Congress and
before its adjournment$ Ipon the other hand5 once Congress has adjourned5 the e#il aforementioned may easily
be conjured by the issuance of other ad interim appointments or reappointments$* (Emphasis supplied+
:ndeed5 the timely application of the last sentence of >ection 65 Article 6:: of the Constitution barely
a#oided the interruption of essential go#ernment ser#ices in the %ay 1<< national elections$ 3ollowing the
decision of this Court in &aminde vs. Commission on Appointments,7?!8 promulgated on 9ecember ?5 1<<<5 the
terms of office of constitutional officers first appointed under the Constitution would ha#e to be counted starting
3ebruary 15 !B"5 the date of ratification of the Constitution5 regardless of the date of their actual appointment$
By this recConing5 the terms of office of three Commissioners of the C/%E.EC5 including the Chairman5 would
end on 3ebruary 15 1<<$7@<8
4hen C/%E.EC Chairperson =arriet /$ 9emetriou was appointed only on &anuary 5 1<<< to ser#e5
pursuant to her appointment papers5 until 3ebruary 55 1<<157@8 the original eApiry date of the term of her
predecessor5 &ustice Bernardo P$ Pardo5 who was ele#ated to this Court$ 4he original eApiry date of the term of
Commissioner 4eresita 9yD.iacco 3lores was also 3ebruary 55 1<<15 while that of Commissioner &ulio 3$
9esamito was No#ember ?5 1<<$7@18 4he original eApiry dates of the terms of office of Chairperson 9emetriou
and Commissioners 3lores and 9esamito were therefore supposed to fall after the %ay 1<< elections$ >uddenly
and uneApectedly5 because of the &aminde ruling5 there were three #acancies in the se#enDperson C/%E.EC5
with national elections looming less than three and oneDhalf months away$ 4o their credit5 Chairperson 9emetriou
and Commissioner 3lores #acated their offices on 3ebruary 15 1<< and did not ,uestion any more before this
Court the applicability of the &aminde ruling to their own situation$
:n a %anifestation7@?8 dated 9ecember 1B5 1<<< filed with this Court in the &aminde case5 Chairperson
9emetriou stated that she was #acating her office on 3ebruary 15 1<<5 as she belie#ed any delay in choosing her
successor might create a )constitutional crisis* in #iew of the proAimity of the %ay 1<< national elections$
Commissioner 9esamito chose to file a petition for inter#ention7@@8 in the &aminde case but this Court denied the
inter#ention$ 4hus5 Commissioner 9esamito also #acated his office on 3ebruary 15 1<<$
9uring an election year5 Congress normally goes on #oluntary recess between 3ebruary and &une
considering that many of the members of the =ouse of Representati#es and the >enate run for reDelection$ :n
1<<5 the Ele#enth Congress adjourned from &anuary !5 1<< to &une ?5 1<<$7@58 Concededly5 there was no more
time for Benipayo5 Borra and 4uason5 who were originally eAtended ad interim appointments only on %arch 115
1<<5 to be confirmed by the Commission on Appointments before the %ay @5 1<< elections$
:f Benipayo5 Borra and 4uason were not eAtended ad interim appointments to fill up the three #acancies in
the C/%E.EC5 there would only ha#e been one di#ision functioning in the C/%E.EC instead of two during the
%ay 1<< elections$ Considering that the Constitution re,uires that )all A A A election cases shall be heard and
decided in di#ision*57@68 the remaining one di#ision would ha#e been swamped with election cases$ %oreo#er5
since under the Constitution motions for reconsideration )shall be decided by the Commission en banc*5 the mere
absence of one of the four remaining members would ha#e pre#ented a ,uorum5 a less than ideal situation
considering that the Commissioners are eApected to tra#el around the country before5 during and after the
elections$ 4here was a great probability that disruptions in the conduct of the %ay 1<< elections could occur
because of the three #acancies in the C/%E.EC$ 4he successful conduct of the %ay 1<< national elections5
right after the tumultuous E9>A :: and E9>A ::: e#ents5 was certainly essential in safeguarding and strengthening
our democracy$
E#idently5 the eAercise by the President in the instant case of her constitutional power to maCe ad interim
appointments pre#ented the occurrence of the #ery e#il sought to be a#oided by the second paragraph of >ection
65 Article 6:: of the Constitution$ 4his power to maCe ad interim appointments is lodged in the President to be
eAercised by her in her sound judgment$ Inder the second paragraph of >ection 65 Article 6:: of the
Constitution5 the President can choose either of two modes in appointing officials who are subject to confirmation
by the Commission on Appointments$ 3irst5 while Congress is in session5 the President may nominate the
prospecti#e appointee5 and pending consent of the Commission on Appointments5 the nominee cannot ,ualify and
assume office$ >econd5 during the recess of Congress5 the President may eAtend an ad interim appointment which
allows the appointee to immediately ,ualify and assume office$
Fhether the President chooses to nominate the prospecti#e appointee or eAtend an ad interim appointment
is a matter within the prerogati#e of the President because the Constitution grants her that power$ 4his Court
cannot in,uire into the propriety of the choice made by the President in the eAercise of her constitutional power5
absent gra#e abuse of discretion amounting to lacC or eAcess of jurisdiction on her part5 which has not been shown
in the instant case$
4he issuance by Presidents of ad interim appointments to the C/%E.EC is a longDstanding practice$
3ormer President CoraGon A,uino issued an ad interim appointment to Commissioner Alfredo E$ Abueg$7@"8
3ormer President 3idel 6$ Ramos eAtended ad interim appointments to Commissioners &ulio 3$ 9esamito5 &apal %$
'uiani5 'raduacion A$ ReyesDClara#all and %anolo 3$ 'orospe$7@B8 3ormer President &oseph Estrada also
eAtended ad interim appointments to Commissioners Abdul 'ani %$ %arohombsar5 .uG#iminda 4ancangco5
%ehol E$ >adain and Ralph C$ .antion$7@!8
4he President;s power to eAtend ad interim appointments may indeed briefly put the appointee at the mercy
of both the appointing and confirming powers$ 4his situation5 howe#er5 is only for a short period D from the time
of issuance of the ad interim appointment until the Commission on Appointments gi#es or withholds its consent$
4he Constitution itself sanctions this situation5 as a tradeDoff against the e#il of disruptions in #ital go#ernment
ser#ices$ 4his is also part of the checCDandDbalance under the separation of powers5 as a tradeDoff against the e#il
of granting the President absolute and sole power to appoint$ 4he Constitution has wisely subjected the
President;s appointing power to the checCing power of the legislature$
4his situation5 howe#er5 does not compromise the independence of the C/%E.EC as a constitutional body$
4he #acancies in the C/%E.EC are precisely staggered to insure that the majority of its members hold confirmed
appointments5 and not one President will appoint all the C/%E.EC members$75<8 :n the instant case5 the
Commission on Appointments had long confirmed four758 of the incumbent C/%E.EC members5 comprising a
majority5 who could now be remo#ed from office only by impeachment$ 4he special constitutional safeguards that
insure the independence of the C/%E.EC remain in place$7518 4he C/%E.EC enjoys fiscal autonomy5 appoints
its own officials and employees5 and promulgates its own rules on pleadings and practice$ %oreo#er5 the salaries
of C/%E.EC members cannot be decreased during their tenure$
:n fine5 we rule that the ad interim appointments eAtended by the President to Benipayo5 Borra and 4uason5
as C/%E.EC Chairman and Commissioners5 respecti#ely5 do not constitute temporary or acting appointments
prohibited by >ection (1+5 Article :HDC of the Constitution$
#hird Issue: #he Constitutionality of Renewals of %ppointments
Petitioner also agues that assuming the first ad interim appointments and the first assumption of office by
Benipayo5 Borra and 4uason are constitutional5 the renewal of the their ad interim appointments and their
subse,uent assumption of office to the same positions #iolate the prohibition on reappointment under >ection
(1+5 Article :HDC of the Constitution5 which pro#ides as follows-
)4he Chairman and the Commissioners shall be appointed by the President with the consent of the Commission
on Appointments for a term of se#en years without reappointment$ /f those first appointed5 three %embers shall
hold office for se#en years5 two %embers for fi#e years5 and the last members for three years5 without
reappointment$ H A A$* (Emphasis supplied+
Petitioner theoriGes that once an ad interim appointee is byDpassed by the Commission on Appointments5 his ad
interim appointment can no longer be renewed because this will #iolate >ection (1+5 Article :HDC of the
Constitution which prohibits reappointments$ Petitioner asserts that this is particularly true to permanent
appointees who ha#e assumed office5 which is the situation of Benipayo5 Borra and 4uason if their ad interim
appointments are deemed permanent in character$
4here is no dispute that an ad interim appointee disappro#ed by the Commission on Appointments can no
longer be eAtended a new appointment$ 4he disappro#al is a final decision of the Commission on Appointments
in the eAercise of its checCing power on the appointing authority of the President$ 4he disappro#al is a decision on
the merits5 being a refusal by the Commission on Appointments to gi#e its consent after deliberating on the
,ualifications of the appointee$ >ince the Constitution does not pro#ide for any appeal from such decision5 the
disappro#al is final and binding on the appointee as well as on the appointing power$ :n this instance5 the
President can no longer renew the appointment not because of the constitutional prohibition on reappointment5 but
because of a final decision by the Commission on Appointments to withhold its consent to the appointment$
An ad interim appointment that is byDpassed because of lacC of time or failure of the Commission on
Appointments to organiGe is another matter$ A byDpassed appointment is one that has not been finally acted upon
on the merits by the Commission on Appointments at the close of the session of Congress$ 4here is no final
decision by the Commission on Appointments to gi#e or withhold its consent to the appointment as re,uired by
the Constitution$ Absent such decision5 the President is free to renew the ad interim appointment of a byDpassed
appointee$ 4his is recogniGed in >ection " of the Rules of the Commission on Appointments5 which pro#ides as
follows-
)>ection "$ 'nacted %ominations or Appointments (eturned to the President$ Nominations or appointments
submitted by the President of the Philippines which are not finally acted upon at the close of the session of
Congress shall be returned to the President and5 unless new nominations or appointments are made5 shall not
again be considered by the Commission$* (Emphasis supplied+
=ence5 under the Rules of the Commission on Appointments5 a byDpassed appointment can be considered again if
the President renews the appointment$
:t is well settled in this jurisdiction that the President can renew the ad interim appointments of byDpassed
appointees$ &ustice Roberto Concepcion5 &r$ lucidly eAplained in his concurring opinion in &uevara vs.
"nocentes75?8 why byDpassed ad interim appointees could be eAtended new appointments5 thus-
):n short5 an ad interim appointment ceases to be effecti#e upon disappro#al by the Commission5 because the
incumbent can not continue holding office o#er the positi#e objection of the Commission$ :t ceases5 also5 upon
)the neAt adjournment of the Congress*5 simply because the President may then issue new appointments D not
because of implied disappro#al of the Commission deduced from its inaction during the session of Congress5 for5
under the Constitution5 the Commission may affect ad#ersely the interim appointments only by action5 ne#er by
omission$ :f the adjournment of Congress were an implied disappro#al of ad interim appointments made prior
thereto5 then the President could no longer appoint those so byDpassed by the Commission$ But5 the fact is that
the President may reappoint them5 thus clearly indicating that the reason for said termination of the ad interim
appointments is not the disappro#al thereof allegedly inferred from said omission of the Commission5 but the
circumstance that upon said ad)ournment of the Con(ress, the President is free to ma+e ad interim
appointments or reappointments$* (Emphasis supplied+
&uevara was decided under the !?5 Constitution from where the second paragraph of >ection 65 Article 6:: of
the present Constitution on ad interim appointments was lifted ver'atim.75@8 4he jurisprudence under the !?5
Constitution go#erning ad interim appointments by the President is doubtless applicable to the present
Constitution$ 4he established practice under the present Constitution is that the President can renew the
appointments of byDpassed ad interim appointees$ 4his is a continuation of the wellDrecogniGed practice under the
!?5 Constitution5 interrupted only by the !"? Constitution which did not pro#ide for a Commission on
Appointments but #ested sole appointing power in the President$
4he prohibition on reappointment in >ection (1+5 Article :HDC of the Constitution applies neither to
disappro#ed nor byDpassed ad interim appointments$ A disappro#ed ad interim appointment cannot be re#i#ed by
another ad interim appointment because the disappro#al is final under >ection 65 Article 6:: of the Constitution5
and not because a reappointment is prohibited under >ection (1+5 Article :HDC of the Constitution$ A byDpassed
ad interim appointment can be re#i#ed by a new ad interim appointment because there is no final disappro#al
under >ection 65 Article 6:: of the Constitution5 and such new appointment will not result in the appointee
ser#ing beyond the fiAed term of se#en years$
>ection (1+5 Article :HDC of the Constitution pro#ides that )7t8he Chairman and the Commissioners shall
be appointed A A A for a term of seven years without reappointment$* (Emphasis supplied+ 4here are four
situations where this pro#ision will apply$ 4he first situation is where an ad interim appointee to the C/%E.EC5
after confirmation by the Commission on Appointments5 ser#es his full se#enDyear term$ >uch person cannot be
reappointed to the C/%E.EC5 whether as a member or as a chairman5 because he will then be actually ser#ing
more than se#en years$ 4he second situation is where the appointee5 after confirmation5 ser#es a part of his term
and then resigns before his se#enDyear term of office ends$ >uch person cannot be reappointed5 whether as a
member or as a chair5 to a #acancy arising from retirement because a reappointment will result in the appointee
also ser#ing more than se#en years$ 4he third situation is where the appointee is confirmed to ser#e the
uneApired term of someone who died or resigned5 and the appointee completes the uneApired term$ >uch person
cannot be reappointed5 whether as a member or chair5 to a #acancy arising from retirement because a
reappointment will result in the appointee also ser#ing more than se#en years$
4he fourth situation is where the appointee has pre#iously ser#ed a term of less than se#en years5 and a
#acancy arises from death or resignation$ E#en if it will not result in his ser#ing more than se#en years5 a
reappointment of such person to ser#e an uneApired term is also prohibited because his situation will be similar to
those appointed under the second sentence of >ection (1+5 Article :HDC of the Constitution$ 4his pro#ision refers
to the first appointees under the Constitution whose terms of office are less than se#en years5 but are barred from
e#er being reappointed under any situation$ $ot one of these four situations applies to the case of Benipayo,
Borra or #uason*
4he framers of the Constitution made it ,uite clear that any person who has ser#ed any term of office as
C/%E.EC member N whether for a full term of se#en years5 a truncated term of fi#e or three years5 or e#en
for an uneApired term of any length of time N can no longer be reappointed to the C/%E.EC$ Commissioner 3oG
succinctly eAplained this intent in this manner-
)%R$ 3/2$ But there is the argument made in the concurring opinion of &ustice Angelo Bautista in
the case of )isarra vs. !iraflor, to the effect that the prohibition on reappointment applies only when
the term or tenure is for se#en years$ But in cases where the appointee ser#es only for less than se#en
years5 he would be entitled to reappointment$ .nless we put the ,ualifyin( words 0without
reappointment1 in the case of those appointed, then it is possi'le that an interpretation could 'e
made later on their case, they can still 'e reappointed to serve for a total of seven years$
Precisely, we are foreclosin( that possi'ility 'y ma+in( it clear that even in the case of those first
appointed under the Constitution, no reappointment can 'e made.*7558 (Emphasis supplied+
:n )isarra vs. !iraflor57568 &ustice Angelo Bautista5 in his concurring opinion5 ,uoted %acionalista vs. *e
)era75"8 that a )7r8eappointment is not prohibited when a Commissioner has held office only for5 say5 three or siA
years5 pro#ided his term will not eAceed nine years in all$* 4his was the interpretation despite the eApress
pro#ision in the !?5 Constitution that a C/%E.EC member )shall hold office for a term of nine years and may
not be reappointed$*
4o foreclose this interpretation5 the phrase )without reappointment* appears twice in >ection (1+5 Article
:HDC of the present Constitution$ 4he first phrase prohibits reappointment of any person pre#iously appointed for
a term of se#en years$ 4he second phrase prohibits reappointment of any person pre#iously appointed for a term
of fi#e or three years pursuant to the first set of appointees under the Constitution$ :n either case5 it does not
matter if the person pre#iously appointed completes his term of office for the intention is to prohibit any
reappointment of any Cind$
=owe#er5 an ad interim appointment that has lapsed by inaction of the Commission on Appointments does
not constitute a term of office$ 4he period from the time the ad interim appointment is made to the time it lapses is
neither a fiAed term nor an uneApired term$ 4o hold otherwise would mean that the President by his unilateral
action could start and complete the running of a term of office in the C/%E.EC without the consent of the
Commission on Appointments$ 4his interpretation renders inutile the confirming power of the Commission on
Appointments$
4he phrase )without reappointment* applies only to one who has been appointed by the President and
confirmed by the Commission on Appointments5 whether or not such person completes his term of office$ 4here
must be a confirmation by the Commission on Appointments of the pre#ious appointment before the prohibition
on reappointment can apply$ 4o hold otherwise will lead to absurdities and negate the President;s power to maCe
ad interim appointments$
:n the great majority of cases5 the Commission on Appointments usually fails to act5 for lacC of time5 on the
ad interim appointments first issued to appointees$ :f such ad interim appointments can no longer be renewed5
the President will certainly hesitate to maCe ad interim appointments because most of her appointees will
effecti#ely be disappro#ed by mere inaction of the Commission on Appointments$ 4his will nullify the
constitutional power of the President to maCe ad interim appointments5 a power intended to a#oid disruptions in
#ital go#ernment ser#ices$ 4his Court cannot subscribe to a proposition that will wreaC ha#oc on #ital
go#ernment ser#ices$
4he prohibition on reappointment is common to the three constitutional commissions$ 4he framers of the
present Constitution prohibited reappointments for two reasons$ 4he first is to pre#ent a second appointment for
those who ha#e been pre#iously appointed and confirmed e#en if they ser#ed for less than se#en years$ 4he
second is to insure that the members of the three constitutional commissions do not ser#e beyond the fiAed term of
se#en years$ As reported in the +ournal of the Constitutional Commission5 Commissioner 6icente B$ 3oG5 who
sponsored75B8the proposed articles on the three constitutional commissions5 outlined the four important features
of the proposed articles5 to wit-
)%r$ 3oG stated that the Committee had introduced basic changes in the common pro#ision affecting
the three Constitutional Commissions5 and which are- + fiscal autonomy which pro#ides (that+
appropriations shall be automatically and regularly released to the Commission in the same manner
(as+ pro#ided for the &udiciary0 1+ fixed term of office without reappointment on a staggered basis
to ensure continuity of functions and to minimiGe the opportunity of the President to appoint all the
members during his incumbency0 ?+ prohibition to decrease salaries of the members of the
Commissions during their term of office0 and @+ appointments of members would not re,uire
confirmation$*75!8 (Emphasis supplied+
4here were two important amendments subse,uently made by the Constitutional Commission to these four
features$ 3irst5 as discussed earlier5 the framers of the Constitution decided to re,uire confirmation by the
Commission on Appointments of all appointments to the constitutional commissions$ >econd5 the framers decided
to stren(then further the prohibition on ser#ing beyond the fiAed se#enDyear term5 in the light of a former chair of
the Commission on Audit remaining in office for 1 years despite his fiAed term of se#en years$ 4he following
eAchange in the deliberations of the Constitutional Commission is instructi#e-
)%R$ >IARE2- 4hese are only clarificatory ,uestions5 %adam President$ %ay : call the sponsor;s
attention5 first of all5 to >ection 1 (1+ on the Ci#il >er#ice Commission wherein it is stated- ):n no
case shall any %ember be appointed in a temporary or acting capacity$* : detect in the Committee;s
proposed resolutions a constitutional hango#er5 if : may use the term5 from the past administration$
Am : correct in concluding that the reason the Committee introduced this particular pro#ision is to
a#oid an incident similar to the case of the =onorable 3rancisco 4antuico who was appointed in an
acting capacity as Chairman of the Commission on Audit for about 5 years from !"5 until !B<5 and
then in !B<5 was appointed as Chairman with a tenure of another " years$ >o5 if we follow that
appointment to (its+ logical conclusion5 he occupied that position for about 1 years in #iolation of
the ConstitutionL
%R$ 3/2- :t is only one of the considerations$ %nother is really to ma+e sure that any mem'er
who is appointed to any of the commissions does not serve 'eyond 2 years$*76<8 (Emphasis
supplied+
Commissioner Christian %onsod further clarified the prohibition on reappointment in this manner-
O%R$ %/N>/9$ :f the (Commissioner+ will read the whole Article5 she will notice that there is no
reappointment of any +ind and5 therefore as a whole there is no way that somebody can ser#e for
more than se#en years$ #he purpose of the last sentence is to ma+e sure that this does not happen
'y includin( in the appointment 'oth temporary and actin( capacities$O768 (Emphasis supplied+
Plainly5 the prohibition on reappointment is intended to insure that there will be no reappointment of any Cind$ /n
the other hand5 the prohibition on temporary or acting appointments is intended to pre#ent any circum#ention of
the prohibition on reappointment that may result in an appointee;s total term of office eAceeding se#en years$ 4he
e#ils sought to be a#oided by the twin prohibitions are #ery specific D reappointment of any Cind and eAceeding
one;s term in office beyond the maAimum period of se#en years$
Not contented with these ironclad twin prohibitions5 the framers of the Constitution tightened e#en further
the screws on those who might wish to eAtend their terms of office$ 4hus5 the word )designated* was inserted to
plug any loophole that might be eAploited by #iolators of the Constitution5 as shown in the following discussion in
the Constitutional Commission-
)%R$ 9E ./> REKE>- /n line ?15 between the words )appointed* and )in*5 : propose to insert the words /R
9E>:'NA4E9 so that the whole sentence will read- ):n no case shall any %ember be appointed /R
9E>:'NA4E9 in a temporary or acting capacity$*
4=E PRE>:9:N' /33:CER (%r$ 4renas+- Fhat does the Committee sayL
%R$ 3/2- But it changes the meaning of this sentence$ 4he sentence reads- ):n no case shall any %ember be
appointed in a temporary or acting capacity$*
%R$ 9E ./> REKE>- %r$ Presiding /fficer5 the reason for this amendment is that some lawyers maCe a
distinction between an appointment and a designation$ 4he 'entleman will recall that in the case of
Commissioner on Audit 4antuico5 : thinC his term eAceeded the constitutional limit but the %inister of &ustice
opined that it did not because he was only designated during the time that he acted as Commissioner on Audit$
>o5 in order to erase that distinction between appointment and designation5 we should specifically place the word
so that there will be no more ambiguity$ ):n no case shall any %ember be appointed /R 9E>:'NA4E9 in a
temporary or acting capacity$*
%R$ 3/2- 4he amendment is accepted5 %r$ Presiding /fficer$
%R$ 9E ./> REKE>- 4hanC you$
4=E PRE>:9:N' /33:CER (%r$ 4renas+- :s there any objectionL (Silence+ 4he Chair hears none0 the
amendment is appro#ed$*7618
4he ad interim appointments and subse,uent renewals of appointments of Benipayo5 Borra and 4uason do
not #iolate the prohibition on reappointments because there were no pre#ious appointments that were confirmed
by the Commission on Appointments$ A reappointment presupposes a pre#ious confirmed appointment$ 4he
same ad interim appointments and renewals of appointments will also not breach the se#enDyear term limit
because all the appointments and renewals of appointments of Benipayo, Borra and #uason are for a fixed
term expirin( on Fe'ruary 3, 3445.76?8 Any delay in their confirmation will not eAtend the eApiry date of their
terms of office$ Conse,uently5 there is no danger whatsoe#er that the renewal of the ad interim appointments of
these three respondents will result in any of the e#ils intended to be eAorcised by the twin prohibitions in the
Constitution$ 4he continuing renewal of the ad interim appointment of these three respondents5 for so long as their
terms of office eApire on 3ebruary 15 1<<B5 does not #iolate the prohibition on reappointments in >ection (1+5
Article :HDC of the Constitution$
Fourth Issue: Respondent Benipayos %uthority to Reassi(n Petitioner
Petitioner claims that Benipayo has no authority to remo#e her as 9irector :6 of the E:9 and reassign her
to the .aw 9epartment$ Petitioner further argues that only the C/%E.EC5 acting as a collegial body5 can
authoriGe such reassignment$ %oreo#er5 petitioner maintains that a reassignment without her consent amounts to
remo#al from office without due process and therefore illegal$
Petitioner;s posturing will hold water if Benipayo does not possess any color of title to the office of
Chairman of the C/%E.EC$ Fe ha#e ruled5 howe#er5 that Benipayo is the de jure C/%E.EC Chairman5 and
conse,uently he has full authority to eAercise all the powers of that office for so long as his ad interim
appointment remains effecti#e$ Inder >ection " (@+5 Chapter 15 >ubtitle C5 BooC 6 of the Re#ised
Administrati#e Code5 the Chairman of the C/%E.EC is #ested with the following power-
)>ection "$ Chairman as ,-ecutive Officer. Po/ers and *uties$ 4he Chairman5 who shall be the Chief EAecuti#e
/fficer of the Commission5 shall-
A A A
(@+ &a+e temporary assi(nments, rotate and transfer personnel in accordance with the pro#isions of the Ci#il
>er#ice .aw$* (Emphasis supplied+
4he Chairman5 as the Chief EAecuti#e of the C/%E.EC5 is eApressly empowered on his own authority to transfer
or reassign C/%E.EC personnel in accordance with the Ci#il >er#ice .aw$ :n the eAercise of this power5 the
Chairman is not re,uired by law to secure the appro#al of the C/%E.EC en banc$
Petitioner;s appointment papers dated 3ebruary 15 !!!5 3ebruary 55 1<<< and 3ebruary 55 1<<5 attached
as AnneAes )H)5 )K* and )2* to her Petition5 indisputably show that she held her 9irector :6 position in the E:9
only in an actin( or temporary capacity$76@8 Petitioner is not a Career EAecuti#e >er#ice (CE>+ officer5 and
neither does she hold Career EAecuti#e >er#ice Eligibility5 which are necessary ,ualifications for holding the
position of 9irector :6 as prescribed in the Mualifications >tandards (Re#ised !B"+ issued by the Ci#il >er#ice
Commission$7658 /b#iously5 petitioner does not enjoy security of tenure as 9irector :6$ :n Secretary of +ustice
Serafin Cuevas vs. Atty. +osefina &. #acal,7668 this Court held that-
)As respondent does not ha#e the ranC appropriate for the position of Chief Public Attorney5 her appointment to
that position cannot be considered permanent5 and she can claim no security of tenure in respect of that position$
As held in Achacoso v. !acaraig-
J:t is settled that a permanent appointment can be issued only Jto a person who meets all the re,uirements for the
position to which he is being appointed5 including the appropriate eligibility prescribed$; Achacoso did not$ At
best5 therefore5 his appointment could be regarded only as temporary$ And being so5 it could be withdrawn at will
by the appointing authority and Jat a moment;s notice;5 conformably to established jurisprudence A A A$
4he mere fact that a position belongs to the Career >er#ice does not automatically confer security of tenure on its
occupant e#en if he does not possess the re,uired ,ualifications$ >uch right will ha#e to depend on the nature of
his appointment5 which in turn depends on his eligibility or lacC of it$ A person who does not ha#e the re,uisite
,ualifications for the position cannot be appointed to it in the first place5 or as an eAception to the rule5 may be
appointed to it merely in an acting capacity in the absence of appropriate eligibles$ 4he appointment eAtended to
him cannot be regarded as permanent e#en if it may be so designated A A A$;*
=a#ing been appointed merely in a temporary or acting capacity5 and not possessed of the necessary
,ualifications to hold the position of 9irector :65 petitioner has no legal basis in claiming that her reassignment
was contrary to the Ci#il >er#ice .aw$ 4his time5 the #igorous argument of petitioner that a temporary or acting
appointment can be withdrawn or re#oCed at the pleasure of the appointing power happens to apply s,uarely to
her situation$
>till5 petitioner assails her reassignment5 carried out during the election period5 as a prohibited act under
>ection 16 (h+ of the /mnibus Election Code5 which pro#ides as follows-
)>ection 16$ Prohibited Acts$ 4he following shall be guilty of an election offense-
A A A
(h+ 4ransfer of officers and employees in the ci#il ser#ice D Any public official who maCes or causes
any transfer or detail whate#er of any officer or employee in the ci#il ser#ice including public
school teachers5 within the election period eAcept upon prior appro#al of the Commission$*
Petitioner claims that Benipayo failed to secure the appro#al of the C/%E.EC en banc to effect transfers or
reassignments of C/%E.EC personnel during the election period$76"8 %oreo#er5 petitioner insists that the
C/%E.EC en banc must concur to e#ery transfer or reassignment of C/%E.EC personnel during the election
period$
Contrary to petitioner;s allegation5 the C/%E.EC did in fact issue C/%E.EC Resolution No$ ??<< dated
No#ember 65 1<<<576B8 eAempting the C/%E.EC from >ection 16 (h+ of the /mnibus Election Code$ 4he
resolution states in part-
)F=EREA>5 >ec$ 56 and >ec$ 165 paragraphs (g+ and (h+5 of the /mnibus Election Code pro#ides as follows-
A A A
>ec$ 16$ Prohibited Acts$ 4he following shall be guilty of an election offense-
A A A
(h+ 4ransfer of officers and employees in the ci#il ser#ice N Any public official who maCes or
causes any transfer or detail whate#er of any officer or employee in the ci#il ser#ice
including public school teachers5 within the election period eAcept upon appro#al of the
Commission$
F=EREA>5 the afore,uoted pro#isions are applicable to the national and local elections on %ay @5 1<<0
F=EREA>5 there is an urgent need to appoint5 transfer or reassign personnel of the Commission on Elections
during the prohibited period in order that it can carry out its constitutional duty to conduct free5 orderly5 honest5
peaceful and credible elections0
)N/F5 4=ERE3/RE5 the Commission on Elections by #irtue of the powers conferred upon it by the
Constitution5 the /mnibus Election Code and other election laws5 as an eAception to the foregoing prohibitions5
has RE>/.6E95 as it is hereby RE>/.6E95 to appoint5 hire new employees or fill new positions and transfer or
reassi(n its personnel, when necessary in the effective performance of its mandated functions durin( the
prohi'ited period5 pro#ided that the changes in the assignment of its field personnel within the thirtyDday period
before election day shall be effected after due notice and hearing$* (Emphasis supplied+
4he pro#iso in C/%E.EC Resolution No$ ??<<5 re,uiring due notice and hearing before any transfer or
reassignment can be made within thirty days prior to election day5 refers only to C/%E.EC field personnel and
not to head office personnel liCe the petitioner$ Inder the Re#ised Administrati#e Code576!8 the C/%E.EC
Chairman is the sole officer specifically #ested with the power to transfer or reassign C/%E.EC personnel$ 4he
C/%E.EC Chairman will logically eAercise the authority to transfer or reassign C/%E.EC personnel pursuant
to C/%E.EC Resolution No$ ??<<$ 4he C/%E.EC en banc cannot arrogate unto itself this power because that
will mean amending the Re#ised Administrati#e Code5 an act the C/%E.EC en banc cannot legally do$
C/%E.EC Resolution No$ ??<< does not re,uire that e#ery transfer or reassignment of C/%E.EC
personnel should carry the concurrence of the C/%E.EC as a collegial body$ :nterpreting Resolution No$ ??<<
to re,uire such concurrence will render the resolution meaningless since the C/%E.EC en banc will ha#e to
appro#e e#ery personnel transfer or reassignment5 maCing the resolution utterly useless$ Resolution No$ ??<<
should be interpreted for what it is5 an appro#al to effect transfers and reassignments of personnel5 without need of
securing a second appro#al from the C/%E.EC en banc to actually implement such transfer or reassignment$
4he C/%E.EC Chairman is the official eApressly authoriGed by law to transfer or reassign C/%E.EC
personnel$ 4he person holding that office5 in a de jure capacity5 is Benipayo$ 4he C/%E.EC en banc, in
C/%E.EC Resolution No$ ??<<5 appro#ed the transfer or reassignment of C/%E.EC personnel during the
election period$ 4hus5 Benipayo;s order reassigning petitioner from the E:9 to the .aw 9epartment does not
#iolate >ection 16 (h+ of the /mnibus Election Code$ 3or the same reason5 Benipayo;s order designating Cinco
/fficerDinDCharge of the E:9 is legally unassailable$
Fifth Issue: 6e(ality of 7is'ursements to Respondents
Based on the foregoing discussion5 respondent 'ideon C$ 9e 'uGman5 /fficerDinDCharge of the 3inance
>er#ices 9epartment of the Commission on Elections5 did not act in eAcess of jurisdiction in paying the salaries
and other emoluments of Benipayo5 Borra5 4uason and Cinco$
9:EREFORE5 the petition is dismissed for lacC of merit$ Costs against petitioner$
"O ORDERED.
*avide, +r., C.+., #ellosillo, !elo, 0apunan, !endoza, Panganiban, 1uisumbing, $nares2Santiago, *e
eon, +r., and Sandoval2&utierrez, ++., concur$
Puno, and )itug, ++., on official lea#e$