EN BANC

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

MA. J. ANGELINA G. MATIBAG, petitioner, 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, respondents.

Brillantes Navarro Jumamil Arcilla Escolin & Martinez Law Offices for
petitioner.

The Solicitor General for respondents.

SYNOPSIS

Before the Supreme Court is an original Petition for Prohibition wherein

petitioner questioned the constitutionality of the appointment and the right to
hold office of respondents Alfredo L. Benipayo, as Chairman of the Commission
on Elections, and Resurreccion Z. Borra and Florentino A. Tuason, Jr., as
COMELEC Commissioners. Petitioner claimed that the ad interim appointments
and reappointments of the respondents violated 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
under Section 1 (2), Article IX-C of the Constitution.
AcIaST

The Court ruled that the ad interim appointments extended by the

President to the respondents, as COMELEC Chairman and Commissioners,
respectively, do not constitute temporary or acting appointments prohibited
under the aforesaid provision. The Constitution itself makes an ad interim
appointment permanent in character by making it effective until such
disapproval or next adjournment, signifying that it can no longer be withdrawn
or revoked by the President. The appointee can at once assume office and
exercise, as a de jure officer, all the powers pertaining to the office. Moreover,
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
Commission on Appointments to first confirm ad interim appointees before they
can assume office will negate the President's power to make ad interim
appointments.

The Court further held that 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 seven years. In the case at bar, the ad interim
appointments and subsequent renewals of appointments of respondents did
not violate the prohibition on reappointments because there were no previous
appointments that were confirmed by the Commission on Appointments. A
reappointment presupposes a previous confirmed appointment. The same ad
interim appointments and renewals of appointments did not also breach the
seven-year term limit because all the appointments and renewals of
appointments of respondents were 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. Thus, the continuing renewal of the ad interim appointment of
the three respondents did not violate the prohibition on reappointments. cCSDTI

SYLLABUS

1. Â CONSTITUTIONAL LAW; JUDICIAL DEPARTMENT; SUPREME COURT;

JUDICIAL REVIEW; PETITIONER HAS LOCUS STANDI TO QUESTION THE
CONSTITUTIONALITY OF RESPONDENTS' ASSUMPTION OF OFFICE IN CASE AT
BAR. — Benipayo reassigned petitioner from the EID, where she was Acting
Director, to the Law Department, where she was placed on detail service.
Respondents claim that the reassignment was "pursuant to . . . Benipayo's
authority as Chairman of the Commission on Elections, and as the
Commission's Chief Executive Officer." Evidently, respondents anchor the
legality of petitioner's reassignment on Benipayo's authority as Chairman of the
COMELEC. The real issue then turns on whether or not Benipayo is the lawful
Chairman of the COMELEC. Even if petitioner is only an Acting Director of the
EID, her reassignment is without legal basis if Benipayo is not the lawful
COMELEC Chairman, an office created by the Constitution. On the other hand, if
Benipayo is the lawful COMELEC Chairman because he assumed office in
accordance with the Constitution, then petitioner's reassignment is legal and
she has no cause to complain provided the reassignment is in accordance with
the Civil Service Law. Clearly, petitioner has a personal and material stake in
the resolution of the constitutionality of Benipayo's assumption of office.
Petitioner's personal and substantial injury, if Benipayo is not the lawful
COMELEC Chairman, clothes her with the requisite locus standi to raise the
constitutional issue in this petition.

2. Â ID.; ID.; ID.; ID.; ID.; EARLIEST OPPORTUNITY TO RAISE A

CONSTITUTIONAL ISSUE IS TO RAISE IT IN A PLEADING BEFORE A COMPETENT
COURT; COURT MAY DETERMINE THE TIME WHEN CONSTITUTIONAL ISSUE MAY
BE PASSED UPON. — Respondents harp on petitioner's belated act of
questioning the constitutionality of the ad interim appointments of Benipayo,
Borra and Tuason. Petitioner filed the instant petition only on August 3, 2001,
when the first ad interim appointments were issued as early as March 22, 2001.
However, it is not the date of filing of the petition that determines whether the
constitutional issue was raised at the earliest opportunity. The earliest
opportunity to raise a constitutional issue is to raise it in the pleadings before a
competent court that can resolve the same, such that, "if it is not raised in the
pleadings, it cannot be considered at the trial, and, if not considered at the trial,
it cannot be considered on appeal." Petitioner questioned the constitutionality
of the ad interim appointments of Benipayo, Borra and Tuason when she filed
her petition before this Court, which is the earliest opportunity for pleading the
constitutional issue before a competent body. Furthermore, this Court may
determine, in the exercise of sound discretion, the time when a constitutional
issue may be passed upon. There is no doubt petitioner raised the
constitutional issue on time.

3. Â ID.; ID.; ID.; ID.; CONSTITUTIONAL ISSUE RAISED BY PETITIONER IS

T H E LIS MOTA OF THE CASE. — Moreover, the legality of petitioner's
reassignment hinges on the constitutionality of Benipayo's ad interim
appointment and assumption of office. Unless the constitutionality of
Benipayo's ad interim appointment and assumption of office is resolved, the
legality of petitioner's reassignment from the EID to the Law Department
cannot be determined. Clearly, the lis mota of this case is the very
constitutional issue raised by petitioner.

4. Â ID.; ID.; ID.; ID.; COURT MAY BRUSH ASIDE TECHNICALITIES OF

PROCEDURE AND RESOLVE ANY CONSTITUTIONAL ISSUE RAISED TO
DETERMINE WHETHER OTHER AGENCIES OF GOVERNMENT HAVE REMAINED
WITHIN LIMITS OF THE CONSTITUTION. — In any event, the issue raised by
petitioner is of paramount importance to the public. The legality of the
directives and decisions made by the COMELEC in the conduct of the May 14,
2001 national elections may be put in doubt if the constitutional issue raised by
petitioner is left unresolved. In keeping with this Court's duty to determine
whether other agencies of government have remained within the limits of the
Constitution and have not abused the discretion given them, this Court may
even brush aside technicalities of procedure and resolve any constitutional
issue raised. Here the petitioner has complied with all the requisite
technicalities. Moreover, public interest requires the resolution of the
constitutional issue raised by petitioner.

5. Â ID.; EXECUTIVE DEPARTMENT; PRESIDENT; POWER OF

APPOINTMENT; AD INTERIM APPOINTMENT; PERMANENT IN CHARACTER AND
CAN NO LONGER BE WITHDRAWN AT ANY TIME ONCE APPOINTEE HAS
QUALIFIED INTO OFFICE. — 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 Commission on Appointments 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 Commission on Appointments or until the next adjournment of Congress.
The second paragraph of Section 16, Article VII of the Constitution provides as
follows: "The President shall have the power to make appointments during the
recess of the Congress, whether voluntary or compulsory, but such
appointments shall be effective only until disapproval by the Commission on
Appointments or until the next adjournment of the Congress." Thus, the ad
interim appointment remains effective until such disapproval or next
adjournment, signifying that it can no longer be withdrawn or revoked by the
President. The fear that the President can withdraw or revoke at any time and
for any reason an ad interim appointment is utterly without basis.

6. Â ID.; ID.; ID.; ID.; ID.; NATURE. — The Constitution imposes no

condition on the effectivity of an ad interim appointment, and thus an ad
interim appointment takes effect immediately. The appointee can at once
assume office and exercise, as a de jure officer, all the powers pertaining to the
office. In Pacete vs. Secretary of the Commission on Appointments, this Court
elaborated on the nature of an ad interimappointment as follows: "A distinction
is thus made between the exercise of such presidential prerogative requiring
confirmation by the Commission on Appointments when Congress is in session
and when it is in recess. In the former, the President nominates, 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 takes
effect at once. The individual chosen may thus qualify and perform his function
without loss of time. His title to such office is complete . In the language of the
Constitution, the appointment is effective 'until disapproval by the Commission
on Appointments or until the next adjournment of the Congress." TCDHIc

7. Â ID.; ID.; ID.; ID.; ID.; ELABORATED. — Petitioner 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. This argument is not new and was
answered by this Court in Pamantasan ng Lungsod ng Maynila vs. Intermediate
Appellate Court, where we explained that: ". . . From the arguments, it is easy
to see why the petitioner should experience difficulty in understanding the
situation. Private respondent had been extended several 'ad interim'
appointments which petitioner mistakenly understands as appointments
temporary in nature. Perhaps, it is the literal translation of the word ' ad interim'
which creates such belief. The term is defined by Black to mean "in the
meantime" or "for the time being." Thus, an officer ad interim is one appointed
to fill a vacancy, or to discharge the duties of the office during the absence or
temporary incapacity of its regular incumbent (Black's Law Dictionary, Revised
Fourth Edition, 1978). But such is not the meaning nor the use intended in the
context of Philippine law. In referring to Dr. Esteban's appointments, the term is
not descriptive of the nature of the appointments given to him. Rather, it is
used to denote the manner in which said appointments were made, that is,
done by the President of the Pamantasan in the meantime, while the Board of
Regents, which is originally vested by the University Charter with the power of
appointment, is unable to act. . . .." Thus, 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. The Court had
again occasion to explain the nature of an ad interim appointment in the more
recent case of Marohombsar vs. Court of Appeals, where the Court stated: "We
have already mentioned that an ad interim appointment is not descriptive of
the nature of the appointment, that is, it is not indicative of whether the
appointment is temporary or in an acting capacity, rather it denotes the
manner in which the appointment was made. In the instant case, the
appointment extended to private respondent by then MSU President Alonto, Jr.
was issued without condition nor limitation as to tenure. The permanent status
of private respondent's appointment as Executive Assistant II was recognized
and attested to by the Civil Service Commission Regional Office No. 12.
Petitioner's submission that private respondent's ad interim appointment is
synonymous with a temporary appointment which could be validly terminated
at any time is clearly untenable. Ad interim appointments are permanent but
their terms are only until the Board disapproves them."

8. Â ID.; ID.; ID.; ID.; ID.; COMPLETE AND IRREVOCABLE ONCE

APPOINTEE HAS QUALIFIED INTO OFFICE; WITHDRAWAL OR REVOCATION
AFTER APPOINTEE HAS QUALIFIED INTO OFFICE IS TANTAMOUNT TO REMOVAL
FROM OFFICE. — 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 "[n]o 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.

9. Â ID.; ID.; ID.; ID.; ID.; TERMINATION; CAUSES. — 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
Commission on Appointments. The second cause is the adjournment of
Congress without the Commission on Appointments 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.

10. Â ID.; ID.; ID.; ID.; ID.; DISTINGUISHED FROM TEMPORARY

APPOINTMENT. — 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. Thus, in Brillantes vs.
Yorac , this Court struck down as unconstitutional the designation by then
President Corazon Aquino of Associate Commissioner Haydee Yorac as Acting
Chairperson of the COMELEC. This Court ruled that: "A designation as Acting
Chairman is by its very terms essentially temporary and therefore revocable at
will. No cause need be established to justify its revocation. Assuming its
validity, 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 whatever reason she sees fit. It is doubtful if the
respondent, having accepted such designation, will not be estopped from
challenging its withdrawal. . . . The Constitution provides for many safeguards
to the independence of the Commission on Elections, foremost among which is
the security of tenure of its members. That guarantee is not available to the
respondent as Acting Chairman of the Commission on Elections by designation
of the President of the Philippines."

11. Â ID.; ID.; ID.; ID.; ID.; TAKES EFFECT IMMEDIATELY; TEMPORARY
APPOINTMENT OF MEMBER OF THE COMELEC IS VIOLATIVE OF THE
CONSTITUTION; AD INTERIM APPOINTMENTS OF RESPONDENTS ARE ALLOWED
BY THE CONSTITUTION. — Earlier, in Nacionalista Party vs. Bautista, a case
decided under the 1935 Constitution, which did not have a provision prohibiting
temporary or acting appointments to the COMELEC, this Court nevertheless
declared unconstitutional the designation of the Solicitor General as acting
member of the COMELEC. This Court ruled that the designation of an acting
Commissioner would undermine the independence of the COMELEC and hence
violate the Constitution. We declared then: "It would be more in keeping with
the intent, purpose and aim of the framers of the Constitution to appoint a
permanent Commissioner than to designate one to act temporarily." In the
instant case, the President did in fact appoint permanent Commissioners to fill
the vacancies in the COMELEC, subject only to confirmation by the Commission
on Appointments. Benipayo, Borra and Tuason were extended permanent
appointments during the recess of Congress. They were not appointed or
designated in a temporary or acting capacity, unlike Commissioner Haydee
Yorac in Brillantes vs. Yorac and Solicitor General Felix Bautista in Nacionalista
Party vs. Bautista . The ad interim appointments of Benipayo, Borra and Tuason
are expressly allowed by the Constitution which authorizes the President,
during the recess of Congress, to make appointments that take effect
immediately. ISAcHD

12. Â ID.; ID.; ID.; ID.; ID.; CONFIRMATION OF COMMISSION ON

APPOINTMENTS NOT REQUIRED BEFORE APPOINTEES CAN ASSUME OFFICE. —
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
Commission on Appointments to first confirm ad interim appointees before the
appointees can assume office will negate the President's power to make ad
interim appointments. This is contrary to the rule on statutory construction to
give meaning and effect to every provision of the law. It will also run counter to
the clear intent of the framers of the Constitution.
 13. Â ID.; ID.; ID.; ID.; ID.; RATIONALE. — The reinstatement in the
present Constitution of the ad interim appointing power of the President was for
the purpose of avoiding interruptions in vital government services that
otherwise would result from prolonged vacancies in government offices,
including the three constitutional commissions. In his concurring opinion in
Guevara vs. Inocentes, decided under the 1935 Constitution, Justice Roberto
Concepcion, Jr. explained the rationale behind ad interim appointments in this
manner: "Now, why is the lifetime of ad interim appointments so limited?
Because, if they expired before the session of Congress, the evil sought to be
avoided — interruption in the discharge of essential functions — may take
place. Because the same evil would result if the appointments ceased to be
effective during the session of Congress and before its adjournment. Upon the
other hand, once Congress has adjourned, the evil aforementioned may easily
be conjured by the issuance of other ad interim appointments or
reappointments." Indeed, the timely application of the last sentence of Section
16, Article VII of the Constitution barely avoided the interruption of essential
government services in the May 2001 national elections. Following the decision
of this Court in Gaminde vs. Commission on Appointments, promulgated on
December 13, 2000, the terms of office of constitutional officers first appointed
under the Constitution would have to be counted starting February 2, 1987, the
date of ratification of the Constitution, regardless of the date of their actual
appointment. By this reckoning, the terms of office of three Commissioners of
the COMELEC, including the Chairman, would end on February 2, 2001.

14. Â ID.; ID.; ID.; ID.; ID.; MODES IN APPOINTING OFFICIALS WHO ARE
SUBJECT TO CONFIRMATION BY COMMISSION ON APPOINTMENTS. — Evidently,
the exercise by the President in the instant case of her constitutional power to
m a ke ad interim appointments prevented the occurrence of the very evil
sought to be avoided by the second paragraph of Section 16, Article VII of the
Constitution. This power to make ad interim appointments is lodged in the
President to be exercised by her in her sound judgment. Under the second
paragraph of Section 16, Article VII of the Constitution, the President can
choose either of two modes in appointing officials who are subject to
confirmation by the Commission on Appointments. First, while Congress is in
session, the President may nominate the prospective appointee, and pending
consent of the Commission on Appointments, 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. IHEDAT

15. Â ID.; ID.; ID.; ID.; ID.; COURT CANNOT INQUIRE INTO THE
PROPRIETY OF PRESIDENT'S CHOICE ABSENT GRAVE ABUSE OF DISCRETION. —
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.
 16. Â ID.; ID.; ID.; ID.; ID.; SUBJECT TO CHECKING POWER OF
LEGISLATURE; AD INTERIM APPOINTMENT DOES NOT COMPROMISE THE
INDEPENDENCE OF THE COMELEC. — 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 Commission on Appointments 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 Commission on Appointments had long confirmed four 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.

17. Â ID.; ID.; ID.; ID.; ID.; AD INTERIM APPOINTEE DISAPPROVED BY

COMMISSION ON APPOINTMENTS CAN NO LONGER BE EXTENDED A NEW
APPOINTMENT; DECISION OF COMMISSION ON APPOINTMENTS IS FINAL AND
BINDING AND CANNOT BE APPEALED. — There is no dispute that an ad interim
appointee disapproved by the Commission on Appointments can no longer be
extended a new appointment. The disapproval is a final decision of the
Commission on Appointments 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 Commission on Appointments 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 Commission on Appointments to withhold its consent to the appointment.
cTCaEA

18. Â ID.; ID.; ID.; ID.; ID.; BY-PASSED APPOINTMENT MAY BE RENEWED
BY THE PRESIDENT. — An ad interim appointment that is by-passed because of
lack of time or failure of the Commission on Appointments to organize is
another matter. A by-passed 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. There is no final decision by the Commission on
Appointments 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. This is recognized in Section 17
of the Rules of the Commission on Appointments, which provides as follows:
"Section 17. Unacted Nominations or Appointments Returned 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 and, unless new nominations or appointments are
made, shall not again be considered by the Commission." Hence, under the
Rules of the Commission on Appointments, a by-passed appointment can be
considered again if the President renews the appointment.

19. Â ID.; ID.; ID.; ID.; ID.; ID.; RATIONALE. — It is well settled in this
jurisdiction that the President can renew the ad interim appointments of by-
passed appointees. Justice Roberto Concepcion, Jr. lucidly explained in his
concurring opinion in Guevara vs. Inocentes why by-passed ad interim
appointees could be extended new appointments, thus: "In short, an ad interim
appointment ceases to be effective upon disapproval by the Commission,
because the incumbent can not continue holding office over the positive
objection of the Commission. It ceases, also, upon "the next adjournment of the
Congress," simply because the President may then issue new appointments —
not because of implied disapproval of the Commission deduced from its
inaction during the session of Congress, for, under the Constitution, the
Commission may affect adversely the interim appointments only by action,
never by omission. If the adjournment of Congress were an implied disapproval
o f ad interim appointments made prior thereto, then the President could no
longer appoint those so by-passed by the Commission. But, the fact is that the
President may reappoint them, thus clearly indicating that the reason for said
termination of the ad interim appointments is not the disapproval thereof
allegedly inferred from said omission of the Commission, but the circumstance
that upon said adjournment of the Congress, the President is free to make ad
interim appointments or reappointments."

20. Â ID.; ID.; ID.; ID.; ID.; WHEN DISAPPROVED CANNOT BE REVIVED
BY ANOTHER AD INTERIM APPOINTMENT. — 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 seven years.

21. Â ID.; COMELEC; ARTICLE IX-C, SECTION 1(2); SEVEN-YEAR TERM

LIMIT; APPLICABILITY. — Section 1(2), Article IX-C of the Constitution provides
that "[t]he Chairman and the Commissioners shall be appointed . . . for a term
of seven years without reappointment." There are four situations where this
provision will apply. The first situation is where an ad interim appointee to the
COMELEC, after confirmation by the Commission on Appointments, serves his
full seven-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 seven years. The second situation is 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 seven years.
The third situation is 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 seven years. The fourth situation is
where the appointee has previously served a term of less than seven years,
and a vacancy arises from death or resignation. Even if it will not result in his
serving more than seven 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.

22. Â ID.; ID.; ID.; ID.; PROHIBITION ON REAPPOINTMENT; EXPLAINED.

— 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
seven years, a truncated term of five or three years, or even for an unexpired
term of any length of time — can no longer be reappointed to the COMELEC. In
Visarra vs. Miraflor, Justice Angelo Bautista, in his concurring opinion, quoted
Nacionalista vs. De Vera that a "[r]eappointment is not prohibited when a
Commissioner has held office only for, say, three or six years, provided his term
will not exceed nine years in all." This was the interpretation despite the
express provision in the 1935 Constitution that a COMELEC member "shall hold
office for a term of nine years and may not be reappointed." 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 seven years.
The second phrase prohibits reappointment of any person previously appointed
for a term of five or three 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. IDTSaC

23. Â ID.; ID.; ID.; ID.; ID.; AN AD INTERIM APPOINTMENT THAT HAS
LAPSED BY INACTION OF COMMISSION ON APPOINTMENTS DOES NOT
CONSTITUTE A TERM OF OFFICE. — However, an ad interim appointment that
has lapsed by inaction of the Commission on Appointments 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 Commission on Appointments. This interpretation renders inutile the
confirming power of the Commission on Appointments.

24. Â ID.; ID.; ID.; ID.; ID.; APPLIES ONLY WHEN THERE IS
CONFIRMATION BY COMMISSION ON APPOINTMENTS OF PREVIOUS
APPOINTMENT. — The phrase "without reappointment" applies only to one who
has been appointed by the President and confirmed by the Commission on
Appointments, whether or not such person completes his term of office. There
must be a confirmation by the Commission on Appointments 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 Commission on
Appointments 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 Commission on Appointments. 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.

25. Â ID.; ID.; ID.; ID.; TWIN PROHIBITIONS; PROHIBITION ON

REAPPOINTMENTS AND TEMPORARY ACTING APPOINTMENTS; RATIONALE. —
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 seven years. The second is to insure that the members of
the three constitutional commissions do not serve beyond the fixed term of
seven 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 seven 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. SacDIE

26. Â ID.; ID.; ID.; ID.; AD INTERIM APPOINTMENTS AND SUBSEQUENT

RENEWALS OF APPOINTMENT OF RESPONDENTS ARE NOT VIOLATIVE THEREOF;
REAPPOINTMENT PRESUPPOSES A PREVIOUS CONFIRMED APPOINTMENT. — 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
Commission on Appointments. A reappointment presupposes a previous
confirmed appointment. The same ad interim appointments and renewals of
appointments will also not breach the seven-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.

27. Â ADMINISTRATIVE LAW; ADMINISTRATIVE CODE; COMELEC;

COMELEC CHAIRMAN; EMPOWERED ON HIS OWN AUTHORITY TO TRANSFER OR
REASSIGN PERSONNEL IN ACCORDANCE WITH CIVIL SERVICE LAW; APPROVAL
OF COMELEC EN BANC, NOT REQUIRED. — Petitioner claims that Benipayo has
no authority to remove her as Director IV of the EID and reassign her to the Law
Department. Petitioner further argues that only the COMELEC, acting as a
collegial body, can authorize such reassignment. Moreover, petitioner maintains
that a reassignment without her consent amounts to removal 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
COMELEC. We have ruled, however, that Benipayo is the de jure COMELEC
Chairman, and consequently he has full authority to exercise all the powers of
that office for so long as his ad interim appointment remains effective. Under
Section 7 (4), Chapter 2, Subtitle C, Book V of the Revised Administrative Code,
the Chairman of the COMELEC is vested with the following power: . . .. The
Chairman, as the Chief Executive of the COMELEC, is expressly empowered on
his own authority to transfer or reassign COMELEC personnel in accordance
with the Civil Service Law. In the exercise of this power, the Chairman is not
required by law to secure the approval of the COMELEC en banc.

28. Â ID.; ID.; ID.; ID.; SOLE OFFICER SPECIFICALLY VESTED WITH
POWER TO TRANSFER OR REASSIGN PERSONNEL; CASE AT BAR. — Contrary to
petitioner's allegation, the COMELEC did in fact issue COMELEC Resolution No.
3300 dated November 6, 2000, exempting the COMELEC from Section 261 (h)
of the Omnibus Election Code. The proviso in COMELEC Resolution No. 3300,
requiring due notice and hearing before any transfer or reassignment can be
made within thirty days prior to election day, refers only to COMELEC field
personnel and not to head office personnel like the petitioner. Under the
Revised Administrative Code, the COMELEC Chairman is the sole officer
specifically vested with the power to transfer or reassign COMELEC personnel.
The COMELEC Chairman will logically exercise the authority to transfer or
reassign COMELEC personnel pursuant to COMELEC Resolution No. 3300. The
COMELEC en banc cannot arrogate unto itself this power because that will
mean amending the Revised Administrative Code, an act the COMELEC en banc
cannot legally do. COMELEC Resolution No. 3300 does not require that every
transfer or reassignment of COMELEC personnel should carry the concurrence
of the COMELEC as a collegial body. Interpreting Resolution No. 3300 to require
such concurrence will render the resolution meaningless since the COMELEC en
banc will have to approve every personnel transfer or reassignment, making the
resolution utterly useless. Resolution No. 3300 should be interpreted for what it
is, an approval to effect transfers and reassignments of personnel, without need
of securing a second approval from the COMELEC en banc to actually
implement such transfer or reassignment.

29. Â ADMINISTRATIVE LAW; CIVIL SERVICE LAW; APPOINTMENTS;

REASSIGNMENT OF PETITIONER IS NOT CONTRARY TO CIVIL SERVICE LAW; A
PERSON APPOINTED IN A TEMPORARY OR ACTING CAPACITY DOES NOT ENJOY
SECURITY OF TENURE. — Petitioner's appointment papers dated February 2,
1999, February 15, 2000 and February 15, 2001, attached as Annexes "X", "Y"
and "Z" to her Petition, indisputably show that she held her Director IV position
in the EID only in an acting or temporary capacity. Petitioner is not a Career
Executive Service (CES) officer, and neither does she hold Career Executive
Service Eligibility, which are necessary qualifications for holding the position of
Director IV as prescribed in the Qualifications Standards (Revised 1987) issued
by the Civil Service Commission. Obviously, petitioner does not enjoy security
of tenure as Director IV. Having been appointed merely in a temporary or
acting capacity, and not possessed of the necessary qualifications to hold the
position of Director IV, petitioner has no legal basis in claiming that her
reassignment was contrary to the Civil Service Law. This time, the vigorous
argument of petitioner that a temporary or acting appointment can be
withdrawn or revoked at the pleasure of the appointing power happens to apply
squarely to her situation.AEcTCD

30. Â ID.; ADMINISTRATIVE CODE; COMELEC; COMELEC CHAIRMAN;

EMPOWERED ON HIS OWN AUTHORITY TO TRANSFER OR REASSIGN PERSONNEL
IN ACCORDANCE WITH CIVIL SERVICE LAW. — The COMELEC Chairman is the
official expressly authorized by law to transfer or reassign COMELEC personnel.
The person holding that office, in a de jure capacity, is Benipayo. The COMELEC
en banc, in COMELEC Resolution No. 3300, approved the transfer or
reassignment of COMELEC personnel during the election period. Thus,
Benipayo's order reassigning petitioner from the EID to the Law Department
does not violate Section 261 (h) of the Omnibus Election Code. For the same
reason, Benipayo's order designating Cinco Officer-in-Charge of the EID is
legally unassailable.

31. Â ID.; ID.; ID.; DISBURSEMENTS TO RESPONDENTS CONSIDERED

LEGAL IN CASE AT BAR. — Respondent Gideon C. De Guzman, Officer-in-Charge
of the Finance Services Department of the Commission on Elections, did not act
in excess of jurisdiction in paying the salaries and other emoluments of
Benipayo, Borra, Tuason and Cinco.

DECISION

CARPIO, J :p

The Case

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 1997 Rules of Civil Procedure. Petitioner Ma. J. Angelina G. Matibag
("Petitioner" for brevity) questions the constitutionality of the appointment and
the right to hold office of the following: (1) Alfredo L. Benipayo ("Benipayo" for
brevity) as Chairman of the Commission on Elections ("COMELEC" for brevity);
and (2) Resurreccion Z. Borra ("Borra" for brevity) and Florentino A. Tuason, Jr.
("Tuason" for brevity) as COMELEC Commissioners. Petitioner also questions
the legality of the appointment of Velma J. Cinco 1 ("Cinco" for brevity) as
Director IV of the COMELEC's Education and Information Department ("EID" for
brevity).
DTEHIA

The Facts

On February 2, 1999, the COMELEC en banc appointed petitioner as

"Acting Director IV" of the EID. On February 15, 2000, then Chairperson Harriet
O. Demetriou renewed the appointment of petitioner as Director IV of EID in a
"Temporary" capacity. On February 15, 2001, Commissioner Rufino S. B. Javier
renewed again the appointment of petitioner to the same position in a
"Temporary" capacity. 2

On March 22, 2001, President Gloria Macapagal Arroyo appointed, ad

interim, Benipayo as COMELEC Chairman, 3 and Borra 4 and Tuason 5 as
COMELEC Commissioners, each for a term of seven 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 confirmations. 6
However, the Commission on Appointments did not act on said appointments.

On June 1, 2001, President Arroyo renewed the ad interim appointments

of Benipayo, Borra and Tuason to the same positions and for the same term of
seven years, expiring on February 2, 2008. 7 They took their oaths of office for
a second time. The Office of the President transmitted on June 5, 2001 their
appointments to the Commission on Appointments for confirmation. 8

Congress adjourned before the Commission on Appointments could act on

their appointments. Thus, on June 8, 2001, President Macapagal Arroyo
renewed again the ad interim appointments of Benipayo, Borra and Tuason to
the same positions. 9 The Office of the President submitted their appointments
for confirmation to the Commission on Appointments. 10 They took their oaths
of office anew.

In his capacity as COMELEC Chairman, Benipayo issued a Memorandum

dated April 11, 2001 11 addressed to petitioner 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 petitioner to the Law Department. COMELEC EID
Commissioner-in-Charge Mehol K. Sadain objected to petitioner's reassignment
in a Memorandum dated April 14, 2001 12 addressed to the COMELEC en banc.
Specifically, Commissioner Sadain questioned Benipayo's failure to consult the
Commissioner-in-Charge of the EID in the reassignment of petitioner.

On April 16, 2001, petitioner requested Benipayo to reconsider her relief

as Director IV of the EID and her reassignment to the Law Department. 13
Petitioner cited Civil Service Commission Memorandum Circular No. 7 dated
April 10, 2001, 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 on April 18,
2001, 14 citing COMELEC Resolution No. 3300 dated November 6, 2000, which
states in part:

"NOW, THEREFORE, the Commission on Elections by virtue of the

powers conferred upon it by the Constitution, the Omnibus Election
Code and other election laws, as an exception to the foregoing
prohibitions, has RESOLVED, as it is hereby RESOLVED, to appoint, hire
new employees or fill new positions and transfer or reassign its
personnel, when necessary in the effective performance of its
mandated functions during the prohibited period, provided that the
changes in the assignment of its field personnel within the thirty-day
period before election day shall be effected after due notice and
hearing."

Petitioner appealed the denial of her request for reconsideration to the

COMELEC en banc in a Memorandum dated April 23, 2001. 15 Petitioner also
filed an administrative and criminal complaint 16 with the Law Department 17
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,

petitioner 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. Petitioner 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, petitioner challenges the
designation of Cinco as Officer-in-Charge of the EID. Petitioner, moreover,
questions the legality of the disbursements made by COMELEC Finance
Services Department Officer-in-Charge Gideon C. De Guzman to Benipayo,
Borra and Tuason by way of salaries and other emoluments.

In the meantime, on September 6, 2001, President Macapagal Arroyo

renewed once again the ad interim appointments of Benipayo as COMELEC
Chairman and Borra and Tuason as Commissioners, respectively, for a term of
seven years expiring on February 2, 2008. 18 They all took their oaths of office
anew.
 The Issues

The issues for resolution of this Court are as follows:

1 Â Whether or not the instant petition satisfies all the

requirements before this Court may exercise its power of
judicial review in constitutional cases;

2 Â 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 Section 1 (2), Article IX-C of the Constitution;

3 Â 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 Section 1 (2), Article IX-C of the Constitution;

4 Â Whether or not Benipayo's removal of petitioner from her

position as Director IV of the EID and her reassignment to the
Law Department is illegal and without authority, having been
done without the approval of the COMELEC as a collegial
body;

5 Â Whether or not the Officer-in-Charge of the COMELEC's

Finance Services Department, in continuing to make
disbursements in favor of Benipayo, Borra, Tuason and Cinco,
is acting in excess of jurisdiction.

First Issue: Propriety of Judicial Review

Respondents assert that the petition fails to satisfy all the four requisites
before this Court may exercise its power of judicial review in constitutional
cases. Out of respect for the acts of the Executive department, which is co-
equal with this Court, respondents urge this Court to refrain from reviewing the
constitutionality of the ad interim appointments issued by the President to
Benipayo, Borra and Tuason unless all the four requisites are present. These
are: (1) the existence of an actual and appropriate controversy; (2) a personal
and substantial interest of the party raising the constitutional issue; (3) the
exercise of the judicial review is pleaded at the earliest opportunity; and (4) the
constitutional issue is the lis mota of the case. 19

Respondents argue that the second, third and fourth requisites are absent
in this case. Respondents maintain that petitioner does not have 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 Benipayo, Borra and Tuason and their
assumption of office. Respondents point out that petitioner does not claim to be
lawfully entitled to any of the positions assumed by Benipayo, Borra or Tuason.
Neither does petitioner claim to be directly injured by the appointments of
these three respondents.

Respondents also contend that petitioner failed to question the

constitutionality of the ad interim appointments at the earliest opportunity.
Petitioner filed the petition only on August 3, 2001 despite the fact that the ad
interim appointments of Benipayo, Borra and Tuason were issued as early as
March 22, 2001. Moreover, 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 EID to the Law Department. Consequently,
the constitutionality of the ad interim appointments is not the lis mota of this
case.

We are not persuaded.

Benipayo reassigned petitioner from the EID, where she was Acting
Director, to the Law Department, where she was placed on detail service. 20
Respondents claim that the reassignment was "pursuant to . . . Benipayo's
authority as Chairman of the Commission on Elections, and as the
Commission's Chief Executive Officer." 21 Evidently, respondents anchor the
legality of petitioner's reassignment on Benipayo's authority as Chairman of the
COMELEC. The real issue then turns on whether or not Benipayo is the lawful
Chairman of the COMELEC. Even if petitioner is only an Acting Director of the
EID, her reassignment is without legal basis if Benipayo is not the lawful
COMELEC Chairman, an office created by the Constitution.

On the other hand, if Benipayo is the lawful COMELEC Chairman because

he assumed office in accordance with the Constitution, then petitioner's
reassignment is legal and she has no cause to complain provided the
reassignment is in accordance with the Civil Service Law. Clearly, petitioner has
a personal and material stake in the resolution of the constitutionality of
Benipayo's assumption of office. Petitioner's personal and substantial injury, if
Benipayo is not the lawful COMELEC Chairman, clothes her with the requisite
locus standi to raise the constitutional issue in this petition.

Respondents harp on petitioner's belated act of questioning the

constitutionality of the ad interim appointments of Benipayo, Borra and Tuason.
Petitioner filed the instant petition only on August 3, 2001, when the first ad
interim appointments were issued as early as March 22, 2001. However, it is
not the date of filing of the petition that determines whether the constitutional
issue was raised at the earliest opportunity. The earliest opportunity to raise a
constitutional issue is to raise it in the pleadings before a competent court that
can resolve the same, such that, "if it is not raised in the pleadings, it cannot be
considered at the trial, and, if not considered at the trial, it cannot be
considered on appeal." 22 Petitioner questioned the constitutionality of the ad
interim appointments of Benipayo, Borra and Tuason when she filed her
petition before this Court, which is the earliest opportunity for pleading the
constitutional issue before a competent body. Furthermore, this Court may
determine, in the exercise of sound discretion, the time when a constitutional
issue may be passed upon. 23 There is no doubt petitioner raised the
constitutional issue on time.

Moreover, the legality of petitioner's reassignment hinges on the

constitutionality of Benipayo's ad interim appointment and assumption of office.
Unless the constitutionality of Benipayo's ad interim appointment and
assumption of office is resolved, the legality of petitioner's reassignment from
the EID to the Law Department cannot be determined. Clearly, the lis mota of
this case is the very constitutional issue raised by petitioner.

In any event, the issue raised by petitioner is of paramount importance to

the public. The legality of the directives and decisions made by the COMELEC in
the conduct of the May 14, 2001 national elections may be put in doubt if the
constitutional issue raised by petitioner is left unresolved. In keeping with this
Court's duty to determine whether other agencies of government have
remained within the limits of the Constitution and have not abused the
discretion given them, this Court may even brush aside technicalities of
procedure and resolve any constitutional issue raised. 24 Here the petitioner
has complied with all the requisite technicalities. Moreover, public interest
requires the resolution of the constitutional issue raised by petitioner.

Second Issue: The Nature of an Ad Interim Appointment

Petitioner argues that an ad interim appointment to the COMELEC is a

temporary appointment that is prohibited by Section 1 (2), Article IX-C of the
Constitution, which provides as follows:

"The Chairman and the Commissioners shall be appointed by the

President with the consent of the Commission on Appointments for a
term of seven years without reappointment. Of those first appointed,
three Members shall hold office for seven years, two Members for five
years, and the last Members for three years, without reappointment.
Appointment to any vacancy shall be only for the unexpired term of the
predecessor. In no case shall any Member be appointed or designated
in a temporary or acting capacity." (Emphasis supplied)

Petitioner posits the view that an ad interim appointment can be withdrawn

or revoked by the President at her pleasure, and can even be disapproved or
simply by-passed by the Commission on Appointments. For this reason,
petitioner claims that an ad interim appointment is temporary in character
and consequently prohibited by the last sentence of Section 1 (2), Article IX-
C of the Constitution.

Based on petitioner's theory, there can be no ad interim appointment to

the COMELEC or to the other two constitutional commissions, namely the Civil
Service Commission and the Commission on Audit. The last sentence of Section
1 (2), Article IX-C of the Constitution is also found in Article IX-B and Article IX-D
providing for the creation of the Civil Service Commission and the Commission
on Audit, respectively. Petitioner interprets the last sentence of Section 1 (2) of
Article IX-C 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.

The rationale behind petitioner's theory is that only an appointee who is

confirmed by the Commission on Appointments can guarantee the
independence of the COMELEC. 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 disapproved. Prior to his
confirmation, 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. In the words of petitioner, a Sword of Damocles hangs over the head of
every appointee whose confirmation is pending with the Commission on
Appointments.

We find petitioner's argument without merit.

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 Commission on Appointments 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 Commission on Appointments or
until the next adjournment of Congress. The second paragraph of Section 16,
Article VII of the Constitution provides as follows:

"The President shall have the power to make appointments

during the recess of the Congress, whether voluntary or compulsory,
but such appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the
Congress." (Emphasis supplied)

Thus, the ad interim appointment remains effective until such disapproval or

next adjournment, signifying that it can no longer be withdrawn or revoked
by the President. The fear that the President can withdraw or revoke at any
time and for any reason an ad interim appointment is utterly without basis.

More than half a century ago, this Court had already ruled that anad
interim appointment is permanent in character. In Summers vs. Ozaeta, 25
decided on October 25, 1948, we held that:

". . . . an ad interim appointment is one made in pursuance of

paragraph (4), Section 10, Article VII of the Constitution, which
provides that the 'President shall have the power to make
appointments during the recess of the Congress, but such
appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the
Congress.' It is an appointment permanent in nature, and the
circumstance that it is subject to confirmation by the Commission on
Appointments does not alter its permanent character. An ad interim
appointment is disapproved certainly for a reason other than that its
 provisional period has expired. Said appointment is of course
distinguishable from an 'acting' appointment which is merely
temporary, good until another permanent appointment is issued."
(Emphasis supplied)

The Constitution imposes no condition on the effectivity of an ad interim

appointment, and thus an ad interim appointment takes effect immediately.
The appointee can at once assume office and exercise, as a de jure officer, all
the powers pertaining to the office. In Pacete vs. Secretary of the Commission
on Appointments, 26 this Court elaborated on the nature of an ad interim
appointment as follows:

"A distinction is thus made between the exercise of such

presidential prerogative requiring confirmation by the Commission on
Appointments when Congress is in session and when it is in recess. In
the former, the President nominates, 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 takes
effect at once. The individual chosen may thus qualify and perform his
function without loss of time. His title to such office is complete. In the
language of the Constitution, the appointment is effective 'until
disapproval by the Commission on Appointments or until the next
adjournment of the Congress.'"

Petitioner 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. This
argument is not new and was answered by this Court in Pamantasan ng
Lungsod ng Maynila vs. Intermediate Appellate Court, 27 where we explained
that:

". . . From the arguments, it is easy to see why the petitioner

should experience difficulty in understanding the situation. Private
respondent had been extended several 'ad interim' appointments
which petitioner mistakenly understands as appointments temporary in
nature. Perhaps, it is the literal translation of the word 'ad interim'
which creates such belief. The term is defined by Black to mean "in the
meantime" or "for the time being." Thus, an officer ad interim is one
appointed to fill a vacancy, or to discharge the duties of the office
during the absence or temporary incapacity of its regular incumbent
(Black's Law Dictionary, Revised Fourth Edition, 1978). But such is not
the meaning nor the use intended in the context of Philippine law. In
referring to Dr. Esteban's appointments, the term is not descriptive of
the nature of the appointments given to him. Rather, it is used to
denote the manner in which said appointments were made, that is,
done by the President of the Pamantasan in the meantime, while the
Board of Regents, which is originally vested by the University Charter
with the power of appointment, is unable to act. . . .." (Emphasis
supplied)

Thus, 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. The Court had again occasion to
explain the nature of an ad interim appointment in the more recent case of
Marohombsar vs. Court of Appeals, 28 where the Court stated:

"We have already mentioned that an ad interim appointment is

not descriptive of the nature of the appointment, that is, it is not
indicative of whether the appointment is temporary or in an acting
capacity, rather it denotes the manner in which the appointment was
made. In the instant case, the appointment extended to private
respondent by then MSU President Alonto, Jr. was issued without
condition nor limitation as to tenure. The permanent status of private
respondent's appointment as Executive Assistant II was recognized and
attested to by the Civil Service Commission Regional Office No. 12.
Petitioner's submission that private respondent's ad interim
appointment is synonymous with a temporary appointment which
could be validly terminated at any time is clearly untenable. Ad interim
appointments are permanent but their terms are only until the Board
disapproves them." (Emphasis supplied)

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 "[n]o officer or employee in the civil
service shall be removed or suspended except for cause provided by law. 29
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. 30 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 Commission on Appointments. The second cause is the
adjournment of Congress without the Commission on Appointments 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.
31 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. Thus, in Brillantes vs. Yorac, 32 this Court
struck down as unconstitutional the designation by then President Corazon
Aquino of Associate Commissioner Haydee Yorac as Acting Chairperson of the
COMELEC. This Court ruled that:

"A designation as Acting Chairman is by its very terms essentially

temporary and therefore revocable at will. No cause need be
established to justify its revocation. Assuming its validity, 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 whatever reason she sees fit. It is doubtful if the
respondent, having accepted such designation, will not be estopped
from challenging its withdrawal.

xxx xxx xxx

The Constitution provides for many safeguards to the

independence of the Commission on Elections, foremost among which
is the security of tenure of its members. That guarantee is not available
to the respondent as Acting Chairman of the Commission on Elections
by designation of the President of the Philippines."

Earlier, in Nacionalista Party vs. Bautista, 33 a case decided under the

1935 Constitution, which did not have a provision prohibiting temporary or
acting appointments to the COMELEC, this Court nevertheless declared
unconstitutional the designation of the Solicitor General as acting member of
the COMELEC. This Court ruled that the designation of an acting Commissioner
would undermine the independence of the COMELEC and hence violate the
Constitution. We declared then: "It would be more in keeping with the intent,
purpose and aim of the framers of the Constitution to appoint a permanent
Commissioner than to designate one to act temporarily." (Emphasis supplied)

In the instant case, the President did in fact appoint permanent

Commissioners to fill the vacancies in the COMELEC, subject only to
confirmation by the Commission on Appointments. Benipayo, Borra and Tuason
were extended permanent appointments during the recess of Congress. They
were not appointed or designated in a temporary or acting capacity, unlike
Commissioner Haydee Yorac in Brillantes vs. Yorac 34 and Solicitor General Felix
Bautista in Nacionalista Party vs. Bautista. 35 The ad interim appointments of
Benipayo, Borra and Tuason 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," 36 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 Commission on Appointments to first confirm ad interim
appointees before the appointees can assume office will negate the President's
power to make ad interim appointments. This is contrary to the rule on
statutory construction to give meaning and effect to every provision of the law.
It will also run counter to the clear intent of the framers of the Constitution.
 The original draft of Section 16, Article VII of the Constitution — on the
nomination of officers subject to confirmation by the Commission on
Appointments — did not provide for ad interim appointments. The 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 except for a brief 30-day compulsory recess. However,
because of the need to avoid disruptions in essential government services, the
framers of the Constitution thought it wise to reinstate the provisions of the
1935 Constitution on ad interim appointments. The following discussion during
the deliberations of the Constitutional Commission elucidates this:

"FR. BERNAS: . . . our compulsory recess now is only 30 days. So

under such circumstances, is it necessary to provide for ad interim
appointments? Perhaps there should be a little discussion on that.

xxx xxx xxx

MS. AQUINO: My concern is that unless this problem is

addressed, this might present problems in terms of anticipating
interruption of government business, considering that we are not
certain of the length of involuntary recess or adjournment of the
Congress. We are certain, however, of the involuntary adjournment of
the Congress which is 30 days, but we cannot leave to conjecture the
matter of involuntary recess.

FR. BERNAS: That is correct, but we are trying to look for a

formula. I wonder if the Commissioner has a formula . . ..

xxx xxx xxx

MR. BENGZON: Madam President, apropos of the matter raised

by Commissioner Aquino and after conferring with the Committee,
Commissioner Aquino and I propose the following amendment as the
last paragraph of Section 16, the wordings of which are in the 1935
Constitution: THE PRESIDENT SHALL HAVE THE POWER TO MAKE
APPOINTMENTS DURING THE RECESS OF CONGRESS WHETHER IT BE
VOLUNTARY OR COMPULSORY BUT SUCH APPOINTMENTS SHALL BE
EFFECTIVE ONLY UNTIL DISAPPROVAL BY THE COMMISSION ON
APPOINTMENTS OR UNTIL THE NEXT ADJOURNMENT OF THE
CONGRESS.

This is otherwise called the ad interim appointments.

xxx xxx xxx

THE PRESIDENT: Is there any objection to the proposed

amendment of Commissioners Aquino and Bengzon, adding a
paragraph to the last paragraph of Section 16? (Silence) The Chair
hears none; the amendment is approved." 37 (Emphasis supplied)

Clearly, the reinstatement in the present Constitution of the ad interim

appointing power of the President was for the purpose of avoiding interruptions
in vital government services that otherwise would result from prolonged
vacancies in government offices, including the three constitutional
commissions. In his concurring opinion in Guevara vs. Inocentes, 38 decided
under the 1935 Constitution, Justice Roberto Concepcion, Jr. explained the
rationale behind ad interim appointments in this manner:

"Now, why is the lifetime of ad interim appointments so limited?

Because, if they expired before the session of Congress, the evil sought
to be avoided — interruption in the discharge of essential functions —
may take place. Because the same evil would result if the
appointments ceased to be effective during the session of Congress
and before its adjournment. Upon the other hand, once Congress has
adjourned, the evil aforementioned may easily be conjured by the
issuance of other ad interim appointments or reappointments."
(Emphasis supplied)

Indeed, the timely application of the last sentence of Section 16, Article
VII of the Constitution barely avoided the interruption of essential government
services in the May 2001 national elections. Following the decision of this Court
in Gaminde vs. Commission on Appointments, 39 promulgated on December 13,
2000, the terms of office of constitutional officers first appointed under the
Constitution would have to be counted starting February 2, 1987, the date of
ratification of the Constitution, regardless of the date of their actual
appointment. By this reckoning, the terms of office of three Commissioners of
the COMELEC, including the Chairman, would end on February 2, 2001. 40

Then COMELEC Chairperson Harriet O. Demetriou was appointed only on

January 11, 2000 to serve, pursuant to her appointment papers, until February
15, 2002, 41 the original expiry date of the term of her predecessor, Justice
Bernardo P. Pardo, who was elevated to this Court. The original expiry date of
the term of Commissioner Teresita Dy-Liacco Flores was also February 15,
2002, while that of Commissioner Julio F. Desamito was November 3, 2001. 42
The original expiry dates of the terms of office of Chairperson Demetriou and
Commissioners Flores and Desamito were therefore supposed to fall after the
May 2001 elections. Suddenly and unexpectedly, because of the Gaminde
ruling, there were three vacancies in the seven-person COMELEC, with national
elections looming less than three and one-half months away. To their credit,
Chairperson Demetriou and Commissioner Flores vacated their offices on
February 2, 2001 and did not question any more before this Court the
applicability of the Gaminde ruling to their own situation.

In a Manifestation 43 dated December 28, 2000 filed with this Court in the
Gaminde case, Chairperson Demetriou stated that she was vacating her office
on February 2, 2001, as she believed any delay in choosing her successor
might create a "constitutional crisis" in view of the proximity of the May 2001
national elections. Commissioner Desamito chose to file a petition for
intervention 44 in the Gaminde case but this Court denied the intervention.
Thus, Commissioner Desamito also vacated his office on February 2, 2001.

During an election year, Congress normally goes on voluntary recess

between February and June considering that many of the members of the
House of Representatives and the Senate run for re-election. In 2001, the
Eleventh Congress adjourned from January 9, 2001 to June 3, 2001. 45
Concededly, there was no more time for Benipayo, Borra and Tuason, who were
originally extended ad interim appointments only on March 22, 2001, to be
confirmed by the Commission on Appointments before the May 14, 2001
elections.

If Benipayo, Borra and Tuason were not extended ad interim

appointments to fill up the three vacancies in the COMELEC, there would only
have been one division functioning in the COMELEC instead of two during the
May 2001 elections. Considering that the Constitution requires that "all . . .
election cases shall be heard and decided in division," 46 the remaining one
division would have been swamped with election cases. Moreover, since under
the Constitution motions for reconsideration "shall be decided by the
Commission en banc," the mere absence of one of the four remaining members
would have prevented a quorum, a less than ideal situation considering that the
Commissioners are expected to travel around the country before, during and
after the elections. There was a great probability that disruptions in the conduct
of the May 2001 elections could occur because of the three vacancies in the
COMELEC. The successful conduct of the May 2001 national elections, right
after the tumultuous EDSA II and EDSA III events, was certainly essential in
safeguarding and strengthening our democracy.

Evidently, the exercise by the President in the instant case of her

constitutional power to make ad interim appointments prevented the
occurrence of the very evil sought to be avoided by the second paragraph of
Section 16, Article VII of the Constitution. This power to make ad interim
appointments is lodged in the President to be exercised by her in her sound
judgment. Under the second paragraph of Section 16, Article VII of the
Constitution, the President can choose either of two modes in appointing
officials who are subject to confirmation by the Commission on Appointments.
First, while Congress is in session, the President may nominate the prospective
appointee, and pending consent of the Commission on Appointments, 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. 47 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. 48
Former President Joseph Estrada also extended ad interim appointments to
Commissioners Abdul Gani M. Marohombsar, Luzviminda Tancangco, Mehol K.
Sadain and Ralph C. Lantion. 49

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 Commission on Appointments
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. 50
In the instant case, the Commission on Appointments had long confirmed four
51 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. 52
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.

Third Issue: The Constitutionality of Renewals of Appointments

Petitioner also argues that assuming the first ad interim appointments

and the first assumption of office by Benipayo, Borra and Tuason are
constitutional, the renewal of the their ad interim appointments and their
subsequent assumption of office to the same positions violate the prohibition
on reappointment under Section 1 (2), Article IX-C of the Constitution, which
provides as follows:

"The Chairman and the Commissioners shall be appointed by the

President with the consent of the Commission on Appointments for a
term of seven years without reappointment. Of those first appointed,
three Members shall hold office for seven years, two Members for five
years, and the last members for three years, without reappointment. . .
.." (Emphasis supplied)

Petitioner theorizes that once an ad interim appointee is by — passed by the

 Commission on Appointments, his ad interim appointment can no longer be
renewed because this will violate Section 1 (2), Article IX-C of the
Constitution which prohibits reappointments. Petitioner asserts that this is
particularly true to permanent appointees who have assumed office, which is
the situation of Benipayo, Borra and Tuason if their ad interim appointments
are deemed permanent in character.

There is no dispute that an ad interim appointee disapproved by the

Commission on Appointments can no longer be extended a new appointment.
The disapproval is a final decision of the Commission on Appointments 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 Commission on
Appointments 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 Commission on Appointments to withhold
its consent to the appointment.

A n ad interim appointment that is by-passed because of lack of time or

failure of the Commission on Appointments to organize is another matter. A by-
passed 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.
There is no final decision by the Commission on Appointments 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. This is recognized in Section 17 of the Rules of the
Commission on Appointments, which provides as follows:

"Section 17. Â Unacted Nominations or Appointments

Returned 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 and,
unless new nominations or appointments are made, shall not again be
considered by the Commission." (Emphasis supplied)

Hence, under the Rules of the Commission on Appointments, a by-passed

appointment can be considered again if the President renews the
appointment.
It is well settled in this jurisdiction that the President can renew the ad
interim appointments of by-passed appointees. Justice Roberto Concepcion,
Jr. lucidly explained in his concurring opinion in Guevara vs. Inocentes 53 why
by-passed ad interim appointees could be extended new appointments,
thus:

"In short, an ad interim appointment ceases to be effective upon

disapproval by the Commission, because the incumbent can not
continue holding office over the positive objection of the Commission.
It ceases, also, upon "the next adjournment of the Congress," simply
 because the President may then issue new appointments — not
because of implied disapproval of the Commission deduced from its
inaction during the session of Congress, for, under the Constitution, the
Commission may affect adversely the interim appointments only by
action, never by omission. If the adjournment of Congress were an
implied disapproval of ad interim appointments made prior thereto,
then the President could no longer appoint those so by-passed by the
Commission. But, the fact is that the President may reappoint them,
thus clearly indicating that the reason for said termination of the ad
interim appointments is not the disapproval thereof allegedly inferred
from said omission of the Commission, but the circumstance that upon
said adjournment of the Congress, the President is free to make ad
interim appointments or reappointments." (Emphasis supplied)

Guevara was decided under the 1935 Constitution from where the second
paragraph of Section 16, Article VII of the present Constitution on ad interim
appointments was lifted verbatim . 54 The jurisprudence under the 1935
Constitution governing ad interim appointments by the President is doubtless
applicable to the present Constitution. 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 Commission on Appointments 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 seven years.

Section 1 (2), Article IX-C of the Constitution provides that "[t]he

Chairman and the Commissioners shall be appointed . . . for a term of seven
years without reappointment." (Emphasis supplied) There are four situations
where this provision will apply. The first situation is where an ad interim
appointee to the COMELEC, after confirmation by the Commission on
Appointments, serves his full seven-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 seven years. The second situation is
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 seven years. The third situation is 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 seven years.

The fourth situation is where the appointee has previously served a term
of less than seven years, and a vacancy arises from death or resignation. Even
if it will not result in his serving more than seven 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
seven years, a truncated term of five or three years, or even for an unexpired
term of any length of time — can no longer be reappointed to the COMELEC.
Commissioner Foz succinctly explained this intent in this manner:

"MR. FOZ. But there is the argument made in the concurring

opinion of Justice Angelo Bautista in the case of Visarra vs. Miraflor, to
the effect that the prohibition on reappointment applies only when the
term or tenure is for seven years. But in cases where the appointee
serves only for less than seven years, he would be entitled to
reappointment. Unless we put the qualifying words "without
reappointment" in the case of those appointed, then it is possible that
an interpretation could be made later on their case, they can still be
reappointed to serve for a total of seven years.

Precisely, we are foreclosing that possibility by making it clear

that even in the case of those first appointed under the Constitution, no
reappointment can be made." 55 (Emphasis supplied)

I n Visarra vs. Miraflor, 56 Justice Angelo Bautista, in his concurring opinion,

quoted Nacionalista vs. De Vera 57 that a "[r]eappointment is not prohibited
when a Commissioner has held office only for, say, three or six years,
provided his term will not exceed nine years in all." This was the
interpretation despite the express provision in the 1935 Constitution that a
COMELEC member "shall hold office for a term of nine years and may not be
reappointed."

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 seven years. The second phrase prohibits reappointment of any person
previously appointed for a term of five or three 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
Commission on Appointments 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 Commission on
Appointments. This interpretation renders inutile the confirming power of the
Commission on Appointments.

The phrase "without reappointment" applies only to one who has been
appointed by the President and confirmed by the Commission on Appointments,
whether or not such person completes his term of office. There must be a
confirmation by the Commission on Appointments 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 Commission on Appointments 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
Commission on Appointments. 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 seven years. The second is to insure that the members of
the three constitutional commissions do not serve beyond the fixed term of
seven years. As reported in the Journal of the Constitutional Commission,
Commissioner Vicente B. Foz, who sponsored 58 the proposed articles on the
three constitutional commissions, outlined the four important features of the
proposed articles, to wit:

"Mr. Foz stated that the Committee had introduced basic

changes in the common provision affecting the three Constitutional
Commissions, and which are: 1) fiscal autonomy which provides (that)
appropriations shall be automatically and regularly released to the
Commission in the same manner (as) provided for the Judiciary; 2)
fixed term of office without reappointment on a staggered basis to
ensure continuity of functions and to minimize the opportunity of the
President to appoint all the members during his incumbency; 3)
prohibition to decrease salaries of the members of the Commissions
during their term of office; and 4) appointments of members would not
require confirmation." 59 (Emphasis supplied)
 There were two important amendments subsequently made by the
Constitutional Commission to these four features. First, as discussed earlier, the
framers of the Constitution decided to require confirmation by the Commission
on Appointments of all appointments to the constitutional commissions.
Second, the framers decided to strengthen further the prohibition on serving
beyond the fixed seven-year term, in the light of a former chair of the
Commission on Audit remaining in office for 12 years despite his fixed term of
seven years. The following exchange in the deliberations of the Constitutional
Commission is instructive:

"MR. SUAREZ: These are only clarificatory questions, Madam

President. May I call the sponsor's attention, first of all, to Section 2 (2)
on the Civil Service Commission wherein it is stated: "In no case shall
any Member be appointed in a temporary or acting capacity." I detect
in the Committee's proposed resolutions a constitutional hangover, if I
may use the term, from the past administration. Am I correct in
concluding that the reason the Committee introduced this particular
provision is to avoid an incident similar to the case of the Honorable
Francisco Tantuico who was appointed in an acting capacity as
Chairman of the Commission on Audit for about 5 years from 1975 until
1980, and then in 1980, was appointed as Chairman with a tenure of
another 7 years. So, if we follow that appointment to (its) logical
conclusion, he occupied that position for about 12 years in violation of
the Constitution?

MR. FOZ: It is only one of the considerations. Another is really to

make sure that any member who is appointed to any of the
commissions does not serve beyond 7 years." 60 (Emphasis supplied)

Commissioner Christian Monsod further clarified the prohibition on

reappointment in this manner:

"MR. MONSOD. If the (Commissioner) will read the whole Article,

she will notice that there is no reappointment of any kind and,
therefore as a whole there is no way that somebody can serve for more
than seven years. The purpose of the last sentence is to make sure
that this does not happen by including in the appointment both
temporary and acting capacities." 61 (Emphasis supplied)

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 seven 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, as shown
in the following discussion in the Constitutional Commission:
 "MR. DE LOS REYES: On line 32, between the words "appointed"
and "in", I propose to insert the words OR DESIGNATED so that the
whole sentence will read: "In no case shall any Member be appointed
OR DESIGNATED in a temporary or acting capacity."

THE PRESIDING OFFICER (Mr. Trenas): What does the Committee

say?

MR. FOZ: But it changes the meaning of this sentence. The

sentence reads: "In no case shall any Member be appointed in a
temporary or acting capacity."

MR. DE LOS REYES: Mr. Presiding Officer, the reason for this
amendment is that some lawyers make a distinction between an
appointment and a designation. The Gentleman will recall that in the
case of Commissioner on Audit Tantuico, I think his term exceeded the
constitutional limit but the Minister of Justice opined that it did not
because he was only designated during the time that he acted as
Commissioner on Audit. So, in order to erase that distinction between
appointment and designation, we should specifically place the word so
that there will be no more ambiguity. "In no case shall any Member be
appointed OR DESIGNATED in a temporary or acting capacity."

MR. FOZ: The amendment is accepted, Mr. Presiding Officer.

MR. DE LOS REYES: Thank you.

THE PRESIDING OFFICER (Mr. Trenas): Is there any objection?

(Silence) The Chair hears none; the amendment is approved." 62

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
Commission on Appointments. A reappointment presupposes a previous
confirmed appointment. The same ad interim appointments and renewals of
appointments will also not breach the seven-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 . 63 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.

Fourth Issue: Respondent Benipayo's Authority to Reassign Petitioner

Petitioner claims that Benipayo has no authority to remove her as

Director IV of the EID and reassign her to the Law Department. Petitioner
further argues that only the COMELEC, acting as a collegial body, can authorize
such reassignment. Moreover, petitioner maintains that a reassignment without
her consent amounts to removal 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 COMELEC. We have ruled,
however, that Benipayo is the de jure COMELEC Chairman, and consequently he
has full authority to exercise all the powers of that office for so long as his ad
interim appointment remains effective. Under Section 7 (4), Chapter 2, Subtitle
C, Book V of the Revised Administrative Code, the Chairman of the COMELEC is
vested with the following power:

"Section 7. Â Chairman as Executive Officer; Powers and

Duties. The Chairman, who shall be the Chief Executive Officer of the
Commission, shall:

xxx xxx xxx

(4) Â Make temporary assignments, rotate and transfer

personnel in accordance with the provisions of the Civil Service Law."
(Emphasis supplied)

The Chairman, as the Chief Executive of the COMELEC, is expressly

empowered on his own authority to transfer or reassign COMELEC personnel
in accordance with the Civil Service Law. In the exercise of this power, the
Chairman is not required by law to secure the approval of the COMELEC en
banc.

Petitioner's appointment papers dated February 2, 1999, February 15,

2000 and February 15, 2001, attached as Annexes "X", "Y" and "Z" to her
Petition, indisputably show that she held her Director IV position in the EID only
in an acting o r temporary capacity. 64 Petitioner is not a Career Executive
Service (CES) officer, and neither does she hold Career Executive Service
Eligibility, which are necessary qualifications for holding the position of Director
IV as prescribed in the Qualifications Standards (Revised 1987) issued by the
Civil Service Commission. 65 Obviously, petitioner does not enjoy security of
tenure as Director IV. In Secretary of Justice Serafin Cuevas vs. Atty. Josefina G.
Bacal, 66 this Court held that:

"As respondent does not have the rank appropriate for the
position of Chief Public Attorney, her appointment to that position
cannot be considered permanent, and she can claim no security of
tenure in respect of that position. As held in Achacoso v. Macaraig:

'It is settled that a permanent appointment can be

issued only 'to a person who meets all the requirements for
the position to which he is being appointed, including the
appropriate eligibility prescribed.' Achacoso did not. At best,
therefore, his appointment could be regarded only as
temporary. And being so, it could be withdrawn at will by the
appointing authority and 'at a moment's notice', conformably
to established jurisprudence . . ..

The mere fact that a position belongs to the Career

 Service does not automatically confer security of tenure on its
occupant even if he does not possess the required
qualifications. Such right will have to depend on the nature of
his appointment, which in turn depends on his eligibility or
lack of it. A person who does not have the requisite
qualifications for the position cannot be appointed to it in the
first place, or as an exception to the rule, may be appointed to
it merely in an acting capacity in the absence of appropriate
eligibles. The appointment extended to him cannot be
regarded as permanent even if it may be so designated . . .."'

Having been appointed merely in a temporary or acting capacity, and not

possessed of the necessary qualifications to hold the position of Director IV,
petitioner has no legal basis in claiming that her reassignment was contrary to
the Civil Service Law. This time, the vigorous argument of petitioner that a
temporary or acting appointment can be withdrawn or revoked at the pleasure
of the appointing power happens to apply squarely to her situation.

Still, petitioner assails her reassignment, carried out during the election
period, as a prohibited act under Section 261 (h) of the Omnibus Election Code,
which provides as follows:

"Section 261. Â Prohibited Acts. The following shall be guilty of

an election offense:

xxx xxx xxx

(h) Â Transfer of officers and employees in the civil service —

Any public official who makes or causes any transfer or detail whatever
of any officer or employee in the civil service including public school
teachers, within the election period except upon prior approval of the
Commission."

Petitioner claims that Benipayo failed to secure the approval of the COMELEC
en banc to effect transfers or reassignments of COMELEC personnel during
the election period. 67 Moreover, petitioner insists that the COMELEC en banc
must concur to every transfer or reassignment of COMELEC personnel during
the election period.

Contrary to petitioner's allegation, the COMELEC did in fact issue

COMELEC Resolution No. 3300 dated November 6, 2000, 68 exempting the
COMELEC from Section 261 (h) of the Omnibus Election Code. The resolution
states in part:

"WHEREAS, Sec. 56 and Sec. 261, paragraphs (g) and (h), of the
Omnibus Election Code provides as follows:

xxx xxx xxx

Sec. 261. Â Prohibited Acts. The following shall be guilty

of an election offense:

xxx xxx xxx

 (h) Â Transfer of officers and employees in the civil
service — Any public official who makes or causes any transfer or
detail whatever of any officer or employee in the civil service
including public school teachers, within the election period
except upon approval of the Commission.

WHEREAS, the aforequoted provisions are applicable to the

national and local elections on May 14, 2001;

WHEREAS, there is an urgent need to appoint, 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 free, orderly, honest, peaceful and credible elections;

"NOW, THEREFORE, the Commission on Elections by virtue of the

powers conferred upon it by the Constitution, the Omnibus Election
Code and other election laws, as an exception to the foregoing
prohibitions, has RESOLVED, as it is hereby RESOLVED, to appoint, hire
new employees or fill new positions and transfer or reassign its
personnel, when necessary in the effective performance of its
mandated functions during the prohibited period, provided that the
changes in the assignment of its field personnel within the thirty-day
period before election day shall be effected after due notice and
hearing." (Emphasis supplied)

The proviso in COMELEC Resolution No. 3300, requiring due notice and
hearing before any transfer or reassignment can be made within thirty days
prior to election day, refers only to COMELEC field personnel and not to head
office personnel like the petitioner. Under the Revised Administrative Code,
69 the COMELEC Chairman is the sole officer specifically vested with the
power to transfer or reassign COMELEC personnel. The COMELEC Chairman
will logically exercise the authority to transfer or reassign COMELEC
personnel pursuant to COMELEC Resolution No. 3300. The COMELEC en banc
cannot arrogate unto itself this power because that will mean amending the
Revised Administrative Code, an act the COMELEC en banc cannot legally do.

COMELEC Resolution No. 3300 does not require that every transfer or
reassignment of COMELEC personnel should carry the concurrence of the
COMELEC as a collegial body. Interpreting Resolution No. 3300 to require such
concurrence will render the resolution meaningless since the COMELEC en banc
will have to approve every personnel transfer or reassignment, making the
resolution utterly useless. Resolution No. 3300 should be interpreted for what it
is, an approval to effect transfers and reassignments of personnel, without need
of securing a second approval from the COMELEC en banc to actually
implement such transfer or reassignment.

The COMELEC Chairman is the official expressly authorized by law to

transfer or reassign COMELEC personnel. The person holding that office, in a de
jure, capacity, is Benipayo. The COMELEC en banc, in COMELEC Resolution No.
3340, approved the transfer or reassignment of COMELEC personnel during the
election period. Thus, Benipayo's order reassigning petitioner from the EID to
the Law Department does not violate Section 261 (h) of the Omnibus Election
Code. For the same reason, Benipayo's order designating Cinco Officer-in-
Charge of the EID is legally unassailable.

Fifth Issue: Legality of Disbursements to Respondents

Based on the foregoing discussion, respondent Gideon C. De Guzman,

Officer-in-Charge of the Finance Services Department of the Commission on
Elections, did not act in excess of jurisdiction in paying the salaries and other
emoluments of Benipayo, Borra, Tuason and Cinco.

WHEREFORE, the petition is dismissed for lack of merit. Costs against

petitioner. ECSHAD

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Kapunan, Mendoza, Panganiban ,

Quisumbing, Ynares-Santiago, De Leon, Jr. and Sandoval-Gutierrez, JJ., concur.

Puno and Vitug, JJ., are on official leave.

Â
Footnotes

1. Â Respondent Cinco, 62 years old, died on November 20, 2001 of multiple

gunshot wounds when she was ambushed at the corner of Eden and Pedro Gil
Streets, Sta. Ana, Manila while riding a car driven by her son.

2. Â Rollo , Annexes "X", "Y" and "Z", pp. 62-64, Petition dated August 1, 2001.

3. Â Ibid. , Annex "A", p. 39.

4. Â Ibid. , Annex "B", p. 40.

5. Â Ibid. , Annex "C", p. 41.

6. Â Ibid., Annex "D", p. 42; Annex "E", p. 43; Annex "F", p. 44.

7. Â Ibid., Annex "J", p. 48; Annex "K", p. 49; Annex "L", p. 50.

8. Â Ibid., Annex "M", p. 51; Annex "N", p. 52; Annex "O", p. 53.

9. Â Ibid., Annex "P", p. 54; Annex "Q", p. 55; Annex "R", p. 56.

10. Â Ibid., Annex "S", p. 57; Annex "T", p. 58; Annex "U", p. 59.

11. Â Ibid., Annex "V", p. 60.

12. Â Ibid., Annex "W", p. 61.

13. Â Ibid. , Annex "19", pp. 125-126.

14. Â Ibid. , Annex "20", pp. 127-128.

15. Â Ibid. , Annex "23", pp. 131-138.

16. Â Ibid. , Annex "25", pp. 142-145.

17. Â Section 265 of the Omnibus Election Code provides as follows: "The
Commission shall, through its duly authorized legal officers, have the
exclusive power to conduct preliminary investigation of all election offenses
punishable under this Code, and to prosecute the same. The Commission
may avail of the assistance of other prosecuting arms of the government:
Provided, however, that in the event that the Commission fails to act on any
complaint within four months from his filing, the complainant may file his
complaint with the office of the fiscal or with the Ministry of Justice for proper
investigation and prosecution, if warranted.

18. Â Ibid., Annex "26", p. 146; Annex "27", p. 147; Annex "28", p. 148.

19. Â Integrated Bar of the Philippines vs. Hon. Ronaldo B. Zamora, 338 SCRA 81
(2000); Philippine Constitutional Association vs. Enriquez, 235 SCRA 506
(1994); Luz Farms vs. Secretary of the Department of Agrarian Reform, 192
SCRA 51 (1990).

20. Â Rollo, Annex "V", p. 60, Petition dated August 1, 2001.

21. Â Rollo, p. 99, Respondents' Comment dated October 29, 2001.

22. Â Joaquin G. Bernas, The 1987 Constitution of the Republic of the

Philippines: A Commentary, p. 858 (1996), citing People vs. Vera , 65 Phil. 56
(1937).

23. Â Ibid. , citing Sotto vs. Commission on Elections, 76 Phil. 516 (1946).

24. Â Ople vs. Torres , 293 SCRA 141 (1998); Telecommunications and
Broadcast Attorneys of the Philippines, Inc. vs. Commission on Elections, 289
SCRA 337 (1998); Osmeña vs. Commission on Elections, 199 SCRA 750
(1991).

25. Â 81 Phil. 754 (1948).

26. Â 40 SCRA 58 (1971).

27. Â 140 SCRA 22 (1985).

28. Â 326 SCRA 62 (2000).

29. Â Section 2 (3), Article IX-B of the Constitution.

30. Â See concurring opinion of Justice Cesar Bengzon in Erana vs. Vergel de
Dios, 85 Phil. 17 (1949).

31. Â Binamira vs. Garrucho, 188 SCRA 154 (1990); Santiago vs. Commission on
Audit, 199 SCRA 125 (1991); Sevilla vs. Court of Appeals, 209 SCRA 637
(1992).

32. Â 192 SCRA 358 (1990).

33. Â 85 Phil. 101 (1949).

34. Â Supra., note 30.

35. Â Supra., note 31.

36. Â Section 1, Article IX-A of the Constitution.

37. Â Record of the Constitutional Commission, pp. 521-524, Volume II (1986).

38. Â 16 SCRA 379 (1966).

39. Â 347 SCRA 655 (2000).

40. Â See Section 1(2), Article IX-C of the Constitution.

41. Â Rollo , p. 189, G.R. No. 140335, Intervenor's Motion for Reconsideration
dated December 27, 2000 in Gaminde vs. Commission on Audit, decided on
December 13, 2000, 347 SCRA 655.

42. Â Ibid.

43. Â Rollo , p. 202 , G.R. No. 140335, Manifestation dated December 28, 2000
i n Gaminde vs. Commission on Audit, decided on December 13, 2000, 347
SCRA 655.

44. Â Supra., note 37.

45. Â Concurrent Resolution No. 23 of the Eleventh Congress, providing for the
Legislative Calendar for the Third Regular Session, adopted by the House of
Representatives on July 25, 2000 and by the Senate on August 7, 2000.

46. Â Section 3, Article IX-C of the Constitution provides as follows: "The

Commission on Elections may sit en banc or in two divisions, and shall
promulgate its rules of procedure in order to expedite disposition of election
cases, including pre-proclamation controversies. All such election cases shall
be heard and decided in division, provided that motions for reconsideration
of decisions shall be decided by the Commission en banc.

47. Â Annex "1-Memorandum", Memorandum of Respondents dated March 15,

2002.

48. Â Annexes "2-Memorandum, 3-Memorandum, 4-Memorandum, and 5-

Memorandum", Memorandum of Respondents dated March 15, 2002.

49. Â Annexes "6-Memorandum, 7-Memorandum, 7-A-Memorandum, 7-B-

Memorandum, 7-C-Memorandum, 7-D-Memorandum, 7-E-Memorandum, 7-F-
Memorandum, 8-Memorandum, 8-A-Memorandum, 8-B-Memorandum, 8-C-
Memorandum, and 9-Memorandum", Memorandum of Respondents dated
March 15, 2002.

50. Â An exception arises if because of succession, a President serves for more

than six years, in which case such a President may be able to appoint all the
seven COMELEC members.

51. Â Commissioners Rufino S.B. Javier, Luzviminda Tancangco, Mehol K.

Sadain, and Ralph C. Lantion.

52. Â See Sections 3, 4, 5 and 6, Article IX-A of the Constitution.

53. Â Supra., note 34.

54. Â See Section 10 (4), Article VII of the 1935 Constitution.

55. Â Record of the Constitutional Commission, p. 591, Volume I (1986).

56. Â 8 SCRA 1 (1963).

57. Â 85 Phil. 126 (1949).

58. Â On behalf of the Committee on Constitutional Commissions and Agencies.

59. Â Journal of the Constitutional Commission, p. 244, Volume I (1986).

60. Â Ibid., p. 546.

61. Â Ibid., p. 586.

62 Â Record of the Constitutional Commission, pp. 586-587, Volume I (1986).

63. Â Rollo, pp. 39-44, Petition dated August 1, 2001; pp. 107-109 and pp. 146-
148, Respondents' Comment dated October 29, 2001.

64. Â Rollo , pp. 62-64, Petition dated August 1, 2001.

65. Â Rollo , p. 102, Respondents' Comment dated October 29, 2001.

66. Â 347 SCRA 338 (2000).

67. Â Under COMELEC Resolution No. 3322 dated March 15, 2001, the election
period for the May 14, 2001 elections was fixed from January 2, 2001 to June
13, 2001. This amended COMELEC Resolution No. 3258 dated September 28,
2000.

68. Â COMELEC Resolution No. 3300 was issued during the time petitioner was
Acting Director of EID — the department tasked with educating and
informing the public on the various directives and resolutions of the
COMELEC en banc.

69. Â See Section 7 (4), Chapter 2, Subtitle C, Book V of the Revised

Administrative Code.