MATIBAG vs. ALFREDO L. BENIPAYO, RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR.

, VELMA
J. CINCO, and GIDEON C. DE GUZMAN in his capacity as Officer-In-Charge, Finance Services
Department of the Commission on Elections
G.R. No. 149036 | April 2, 2002

FACTS: On February 2, 1999, the COMELEC en banc appointed MA. J. ANGELINA G. MATIBAG as "Acting
Director IV" of the Education and Information Department of COMELEC. On February 15, 2000, then
Chairperson Harriet O. Demetriou renewed the said appointment as Director IV of EID in a "Temporary"
capacity. On February 15, 2001, Commissioner Rufino S.B. Javier renewed again the appointment to the
same position in a "Temporary" capacity.

On March 22, 2001, President Gloria Macapagal Arroyo appointed, ad interim, Benipayo as COMELEC
Chairman, and Borra and Tuason as COMELEC Commissioners, each for a term of 7 years and all expiring
on February 2, 2008. Benipayo took his oath of office and assumed the position of COMELEC Chairman.
Borra and Tuason likewise took their oaths of office and assumed their positions as COMELEC
Commissioners. The Office of the President submitted to the Commission on Appointments on May 22,
2001 the ad interim appointments of Benipayo, Borra and Tuason for confirmation. However, the CoA
did not act on said appointments.

On June 1, 2001, PGMA renewed the ad interim appointments of Benipayo, Borra and Tuason to the
same positions and for the same term of 7 years, expiring on February 2, 2008. They took their oaths of
office for a 2nd time. The Office of the President transmitted on June 5, 2001 their appointments to the
CoA for confirmation.

However, Congress adjourned before the CoA could act on their appointments. Thus, on June 8, 2001,
PGMA renewed again the ad interim appointments of to the same positions. The Office of the President
submitted their appointments for confirmation to the CoA. They took their oaths of office anew.

In his capacity as COMELEC Chairman, Benipayo issued a Memorandum addressed to Matibag as

Director IV of the EID and to Cinco as Director III also of the EID, designating Cinco Officer-in-Charge of
the EID and reassigning Matibag to the Law Department. COMELEC EID Commissioner-in-Charge Mehol
K. Sadain objected to Matibag’s reassignment in a Memorandum addressed to the COMELEC  en banc,
questioning Benipayo’s failure to consult the Commissioner-in-Charge of the EID in the reassignment of
Matibag.

Thereafter, Matibag requested Benipayo to reconsider her relief as Director IV of the EID and her
reassignment to the Law Department. Matibag cited Civil Service Commission Memorandum Circular
No. 7, reminding heads of government offices that "transfer and detail of employees are prohibited
during the election period beginning January 2 until June 13, 2001." Benipayo denied her request for
reconsideration, citing COMELEC Resolution No. 3300.

Matibag appealed the denial of her request for reconsideration to the COMELEC en banc. Matibag also
filed an administrative and criminal complaint with the Law Department against Benipayo, alleging that
her reassignment violated Section 261 (h) of the Omnibus Election Code, COMELEC Resolution No. 3258,
Civil Service Memorandum Circular No. 07, s. 001, and other pertinent administrative and civil service
laws, rules and regulations.
During the pendency of her complaint before the Law Department, Matibag filed the instant petition
questioning the appointment and the right to remain in office of Benipayo, Borra and Tuason, as
Chairman and Commissioners of the COMELEC, respectively. Matibag claims that the ad
interim appointments of Benipayo, Borra and Tuason violate the constitutional provisions on the
independence of the COMELEC, as well as on the prohibitions on temporary appointments and
reappointments of its Chairman and members. Petitioner also assails as illegal her removal as Director IV
of the EID and her reassignment to the Law Department. Simultaneously, Matibag challenges the
designation of Cinco as OIC of the EID. He also questioned the legality of the disbursements made by
COMELEC Finance Services Department Officer-in-Charge Gideon C. De Guzman to respondents by way
of salaries and other emoluments.

In the meantime, PGMA renewed once again the ad interim appointments of Benipayo as COMELEC
Chairman and Borra and Tuason as Commissioners, respectively, for a term of 7 years expiring on
February 2, 2008. They all took their oaths of office anew.

ISSUE: 1) Whether or not the assumption of office by Benipayo, Borra and Tuason on the basis of the ad
interim appointments issued by the President amounts to a temporary appointment prohibited by Sec.
1(2), Art. IX-C.

2) Assuming that the first ad interim appointments and the first assumption of office by Benipayo, Borra
and Tuason are legal, whether or not the renewal of their ad interim appointments and subsequent
assumption of office to the same positions violate the prohibition on reappointment under Sec. 1(2), Art.
IX-C.

RULING: 1) NO. An ad interim appointment is a permanent appointment because it takes effect

immediately and can no longer be withdrawn by the President once the appointee has qualified into
office. The fact that it is subject to confirmation by the CoA does not alter its permanent character. The
Constitution itself makes an ad interim appointment permanent in character by making it effective until
disapproved by the CoA or until the next adjournment of Congress.

Matibag cites Black’s Law Dictionary which defines the term "ad interim" to mean "in the meantime" or
"for the time being." Hence, petitioner argues that an ad interim appointment is undoubtedly temporary
in character.

The term "ad interim appointment", as used in letters of appointment signed by the President, means a
permanent appointment made by the President in the meantime that Congress is in recess. It does not
mean a temporary appointment that can be withdrawn or revoked at any time. The term, although not
found in the text of the Constitution, has acquired a definite legal meaning under Philippine
jurisprudence.

An ad interim appointee who has qualified and assumed office becomes at that moment a government
employee and therefore part of the civil service. He enjoys the constitutional protection that "no officer
or employee in the civil service shall be removed or suspended except for cause provided by law." Thus,
an ad interim appointment becomes complete and irrevocable once the appointee has qualified into
office. The withdrawal or revocation of an ad interim appointment is possible only if it is communicated
to the appointee before the moment he qualifies, and any withdrawal or revocation thereafter is
tantamount to removal from office. Once an appointee has qualified, he acquires a legal right to the
office which is protected not only by statute but also by the Constitution. He can only be removed for
cause, after notice and hearing, consistent with the requirements of due process.

An ad interim appointment can be terminated for two causes specified in the Constitution. The first
cause is the disapproval of his ad interim appointment by the CoA. The second cause is the adjournment
of Congress without the CoA acting on his appointment. These two causes are resolutory conditions
expressly imposed by the Constitution on all ad interim appointments. These resolutory conditions
constitute, in effect, a Sword of Damocles over the heads of ad interim appointees. No one, however,
can complain because it is the Constitution itself that places the Sword of Damocles over the heads of
the ad interim appointees.

While an ad interim appointment is permanent and irrevocable except as provided by law, an

appointment or designation in a temporary or acting capacity can be withdrawn or revoked at the
pleasure of the appointing power. A temporary or acting appointee does not enjoy any security of
tenure, no matter how briefly. This is the kind of appointment that the Constitution prohibits the
President from making to the three independent constitutional commissions, including the COMELEC.

In the case at bar, the President did in fact appoint permanent Commissioners to fill the vacancies in the
COMELEC, subject only to confirmation by the CoA. Respondents were extended permanent
appointments during the recess of Congress. They were not appointed or designated in a temporary or
acting capacity. The ad interim appointments of respondents are expressly allowed by the Constitution
which authorizes the President, during the recess of Congress, to make appointments that take effect
immediately.

While the Constitution mandates that the COMELEC "shall be independent”, this provision should be
harmonized with the President’s power to extend ad interim appointments. To hold that the
independence of the COMELEC requires the CoA to first confirm ad interim appointees before the
appointees can assume office will negate the President’s power to make ad interim appointments.

The power to make ad interim appointments is lodged in the President to be exercised by her in her
sound judgment. Under the 2nd paragraph of Section 16, Article VII of the Constitution, the President
can choose either of 2 modes in appointing officials who are subject to confirmation by the CoA. First,
while Congress is in session, the President may nominate the prospective appointee, and pending
consent of the CoA, the nominee cannot qualify and assume office. Second, during the recess of
Congress, the President may extend an ad interim appointment which allows the appointee to
immediately qualify and assume office.

Whether the President chooses to nominate the prospective appointee or extend an ad
interim appointment is a matter within the prerogative of the President because the Constitution grants
her that power. This Court cannot inquire into the propriety of the choice made by the President in the
exercise of her constitutional power, absent grave abuse of discretion amounting to lack or excess of
jurisdiction on her part, which has not been shown in the instant case.

The issuance by Presidents of ad interim appointments to the COMELEC is a long-standing practice.

Former President Corazon Aquino issued an ad interim appointment to Commissioner Alfredo E. Abueg.
Former President Fidel V. Ramos extended ad interim appointments to Commissioners Julio F. Desamito,
Japal M. Guiani, Graduacion A. Reyes-Claravall and Manolo F. Gorospe. Former President Joseph Estrada
also extended ad interim appointments to Commissioners Abdul Gani M. Marohombsar, Luzviminda
Tancangco, Mehol K. Sadain and Ralph C. Lantion.

The President’s power to extend ad interim appointments may indeed briefly put the appointee at the
mercy of both the appointing and confirming powers. This situation, however, is only for a short period -
from the time of issuance of the ad interim appointment until the CoA gives or withholds its consent.
The Constitution itself sanctions this situation, as a trade-off against the evil of disruptions in vital
government services. This is also part of the check-and-balance under the separation of powers, as a
trade-off against the evil of granting the President absolute and sole power to appoint. The Constitution
has wisely subjected the President’s appointing power to the checking power of the legislature.

This situation, however, does not compromise the independence of the COMELEC as a constitutional
body. The vacancies in the COMELEC are precisely staggered to insure that the majority of its members
hold confirmed appointments, and not one President will appoint all the COMELEC members. In the
instant case, the CoA had long confirmed 4 of the incumbent COMELEC members, comprising a majority,
who could now be removed from office only by impeachment. The special constitutional safeguards that
insure the independence of the COMELEC remain in place. The COMELEC enjoys fiscal autonomy,
appoints its own officials and employees, and promulgates its own rules on pleadings and practice.
Moreover, the salaries of COMELEC members cannot be decreased during their tenure.

In fine, we rule that the ad interim appointments extended by the President to Benipayo, Borra and
Tuason, as COMELEC Chairman and Commissioners, respectively, do not constitute temporary or acting
appointments prohibited by Section 1 (2), Article IX-C of the Constitution.

2) NO. There is no dispute that an ad interim appointee disapproved by the CoA can no longer be
extended a new appointment. The disapproval is a final decision of the CoA in the exercise of its
checking power on the appointing authority of the President. The disapproval is a decision on the
merits, being a refusal by the CoA to give its consent after deliberating on the qualifications of the
appointee. Since the Constitution does not provide for any appeal from such decision, the disapproval is
final and binding on the appointee as well as on the appointing power. In this instance, the President
can no longer renew the appointment not because of the constitutional prohibition on reappointment,
but because of a final decision by the CoA to withhold its consent to the appointment.

However, an ad interim appointment that is by-passed because of lack of time or failure of the CoA to
organize is another matter. A by-passed appointment is one that has not been finally acted upon on the
merits by the CoA at the close of the session of Congress. There is no final decision by the CoA to give or
withhold its consent to the appointment as required by the Constitution. Absent such decision, the
President is free to renew the ad interim appointment of a by-passed appointee.

Under the Rules of the CoA, a by-passed appointment can be considered again if the President renews
the appointment. Also, it is well settled in this jurisdiction that the President can renew the ad
interim appointments of by-passed appointees.

The established practice under the present Constitution is that the President can renew the
appointments of by-passed ad interim appointees. This is a continuation of the well-recognized practice
under the 1935 Constitution, interrupted only by the 1973 Constitution which did not provide for a CoA
but vested sole appointing power in the President.
The prohibition on reappointment in Section 1 (2), Article IX-C of the Constitution applies neither to
disapproved nor by-passed ad interim appointments. A disapproved ad interim appointment cannot be
revived by another ad interim appointment because the disapproval is final under Section 16, Article VII
of the Constitution, and not because a reappointment is prohibited under Section 1 (2), Article IX-C of
the Constitution. A by-passed ad interim appointment can be revived by a new ad interim appointment
because there is no final disapproval under Section 16, Article VII of the Constitution, and such new
appointment will not result in the appointee serving beyond the fixed term of 7 years.

Section 1 (2), Article IX-C of the Constitution provides that "the Chairman and the Commissioners shall
be appointed x x x for a term of seven years without reappointment." There are four situations where
this provision will apply: 1) where an ad interim appointee to the COMELEC, after confirmation by the
CoA, serves his full 7-year term. Such person cannot be reappointed to the COMELEC, whether as a
member or as a chairman, because he will then be actually serving more than 7 years; 2) where the
appointee, after confirmation, serves a part of his term and then resigns before his seven-year term of
office ends. Such person cannot be reappointed, whether as a member or as a chair, to a vacancy arising
from retirement because a reappointment will result in the appointee also serving more than 7 years; 3)
where the appointee is confirmed to serve the unexpired term of someone who died or resigned, and
the appointee completes the unexpired term. Such person cannot be reappointed, whether as a
member or chair, to a vacancy arising from retirement because a reappointment will result in the
appointee also serving more than 7 years.

The fourth situation is where the appointee has previously served a term of less than 7 years, and a
vacancy arises from death or resignation. Even if it will not result in his serving more than 7 years, a
reappointment of such person to serve an unexpired term is also prohibited because his situation will be
similar to those appointed under the second sentence of Section 1 (2), Article IX-C of the Constitution.
This provision refers to the first appointees under the Constitution whose terms of office are less than
seven years, but are barred from ever being reappointed under any situation. Not one of these four
situations applies to the case of Benipayo, Borra or Tuason.

The framers of the Constitution made it quite clear that any person who has served any term of office as
COMELEC member – whether for a full term of 7 years, a truncated term of 5 or 3 years, or even for an
unexpired term of any length of time – can no longer be reappointed to the COMELEC.

To foreclose this interpretation, the phrase "without reappointment" appears twice in Section 1 (2),
Article IX-C of the present Constitution. The first phrase prohibits reappointment of any person
previously appointed for a term of 7 years. The second phrase prohibits reappointment of any person
previously appointed for a term of 5 or 3 years pursuant to the first set of appointees under the
Constitution. In either case, it does not matter if the person previously appointed completes his term of
office for the intention is to prohibit any reappointment of any kind.

However, an ad interim appointment that has lapsed by inaction of the CoA does not constitute a term
of office. The period from the time the ad interim appointment is made to the time it lapses is neither a
fixed term nor an unexpired term. To hold otherwise would mean that the President by his unilateral
action could start and complete the running of a term of office in the COMELEC without the consent of
the CoA. This interpretation renders inutile the confirming power of the CoA.

The phrase "without reappointment" applies only to one who has been appointed by the President and
confirmed by the CoA, whether or not such person completes his term of office. There must be a
confirmation by the CoA of the previous appointment before the prohibition on reappointment can
apply. To hold otherwise will lead to absurdities and negate the President’s power to make ad
interim appointments.

In the great majority of cases, the CoA usually fails to act, for lack of time, on the  ad
interim  appointments first issued to appointees. If such ad interim appointments can no longer be
renewed, the President will certainly hesitate to make ad interim appointments because most of her
appointees will effectively be disapproved by mere inaction of the CoA. This will nullify the constitutional
power of the President to make ad interim appointments, a power intended to avoid disruptions in vital
government services. This Court cannot subscribe to a proposition that will wreak havoc on vital
government services.

The prohibition on reappointment is common to the three constitutional commissions. The framers of
the present Constitution prohibited reappointments for two reasons. The first is to prevent a second
appointment for those who have been previously appointed and confirmed even if they served for less
than 7 years. The second is to insure that the members of the three constitutional commissions do not
serve beyond the fixed term of 7 years.

Plainly, the prohibition on reappointment is intended to insure that there will be no reappointment of
any kind. On the other hand, the prohibition on temporary or acting appointments is intended to
prevent any circumvention of the prohibition on reappointment that may result in an appointee’s total
term of office exceeding 7 years. The evils sought to be avoided by the twin prohibitions are very specific
- reappointment of any kind and exceeding one’s term in office beyond the maximum period of seven
years.
Not contented with these ironclad twin prohibitions, the framers of the Constitution tightened even
further the screws on those who might wish to extend their terms of office. Thus, the word "designated"
was inserted to plug any loophole that might be exploited by violators of the Constitution.

The ad interim appointments and subsequent renewals of appointments of Benipayo, Borra and Tuason
do not violate the prohibition on reappointments because there were no previous appointments that
were confirmed by the CoA. A reappointment presupposes a previous confirmed appointment. The
same ad interim appointments and renewals of appointments will also not breach the 7-year term limit
because all the appointments and renewals of appointments of Benipayo, Borra and Tuason are for a
fixed term expiring on February 2, 2008. Any delay in their confirmation will not extend the expiry date
of their terms of office. Consequently, there is no danger whatsoever that the renewal of the  ad
interim appointments of these three respondents will result in any of the evils intended to be exorcised
by the twin prohibitions in the Constitution. The continuing renewal of the ad interim appointment of
these three respondents, for so long as their terms of office expire on February 2, 2008, does not violate
the prohibition on reappointments in Section 1 (2), Article IX-C of the Constitution.