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 CommissionerDinD
Charge 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 /fficerDinDCharge '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$* (Emphasis supplied+
Petitioner posits the #iew that an ad interim appointment can be withdrawn or
re#oCed by the President at her pleasure5 and can e#en be disappro#ed or simply byD
passed by the Commission on Appointments$ 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 oneD
half 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 checCDandD
balance 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$