Introduction to Law

Ople V. Torres
EN BANC

[G.R. No. 127685. July 23, 1998]

BLAS F. OPLE, petitioner, vs. RUBEN D. TORRES, ALEXANDER

AGUIRRE, HECTOR VILLANUEVA, CIELITO HABITO, ROBERT
BARBERS, CARMENCITA REODICA, CESAR SARINO, RENATO
VALENCIA, TOMAS P. AFRICA, HEAD OF THE NATIONAL
COMPUTER CENTER and CHAIRMAN OF THE COMMISSION ON
AUDIT, respondents.
DECISION
PUNO, J.:
The petition at bar is a commendable effort on the part of Senator Blas F.
Ople to prevent the shrinking of the right to privacy, which the revered Mr.
Justice Brandeis considered as "the most comprehensive of rights and the
right most valued by civilized men."[1] Petitioner Ople prays that we
invalidate Administrative Order No. 308 entitled "Adoption of a National
Computerized Identification Reference System" on two important
constitutional grounds, viz: one, it is a usurpation of the power of Congress
to legislate, and two, it impermissibly intrudes on our citizenry's protected
zone of privacy. We grant the petition for the rights sought to be vindicated
by the petitioner need stronger barriers against further erosion.
A.O. No. 308 was issued by President Fidel V. Ramos on December 12,
1996 and reads as follows:
"ADOPTION OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE
SYSTEM
WHEREAS, there is a need to provide Filipino citizens and foreign residents
with the facility to conveniently transact business with basic service and
social security providers and other government instrumentalities;
WHEREAS, this will require a computerized system to properly and
efficiently identify persons seeking basic services on social security and

reduce, if not totally eradicate, fraudulent transactions and

misrepresentations;
WHEREAS, a concerted and collaborative effort among the various basic
services and social security providing agencies and other government
instrumentalities is required to achieve such a system;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the
Philippines, by virtue of the powers vested in me by law, do hereby direct
the following:
SECTION 1. Establishment of a National Computerized Identification
Reference System. A decentralized Identification Reference System among
the key basic services and social security providers is hereby established.
SEC. 2 Inter-Agency Coordinating Committee. An Inter-Agency Coordinating
Committee (IACC) to draw-up the implementing guidelines and oversee the
implementation of the System is hereby created, chaired by the Executive
Secretary, with the following as members:
Head, Presidential Management Staff
Secretary, National Economic Development Authority
Secretary, Department of the Interior and
Local Government
Secretary, Department of Health
Administrator, Government Service Insurance
System,
Administrator, Social Security System, Administrator,
National Statistics Office Managing Director, National
Computer Center.
SEC. 3. Secretariat. The National Computer Center (NCC) is hereby
designated as secretariat to the IACC and as such shall provide
administrative and technical support to the IACC.
SEC. 4. Linkage Among Agencies. The Population Reference Number (PRN)
generated by the NSO shall serve as the common reference number to
establish a linkage among concerned agencies. The IACC Secretariat shall
coordinate with the different Social Security and Services Agencies to
establish the standards in the use of Biometrics Technology and in computer
application designs of their respective systems.
SEC. 5. Conduct of Information Dissemination Campaign. The Office of the
Press Secretary, in coordination with the National Statistics Office, the GSIS

and SSS as lead agencies and other concerned agencies shall undertake a
massive tri-media information dissemination campaign to educate and raise
public awareness on the importance and use of the PRN and the Social
Security Identification Reference.
SEC. 6. Funding. The funds necessary for the implementation of the system
shall be sourced from the respective budgets of the concerned agencies.
SEC. 7. Submission of Regular Reports. The NSO, GSIS and SSS shall
submit regular reports to the Office of the President, through the IACC, on
the status of implementation of this undertaking.
SEC. 8. Effectivity. This Administrative Order shall take effect immediately.
DONE in the City of Manila, this 12th day of December in the year of Our
Lord, Nineteen Hundred and Ninety-Six.
(SGD.) FIDEL V. RAMOS"
A.O. No. 308 was published in four newspapers of general circulation on
January 22, 1997 and January 23, 1997. On January 24, 1997, petitioner
filed the instant petition against respondents, then Executive Secretary
Ruben Torres and the heads of the government agencies, who as members
of the Inter-Agency Coordinating Committee, are charged with the
implementation of A.O. No. 308. On April 8, 1997, we issued a temporary
restraining order enjoining its implementation.
Petitioner contends:
"A.
THE ESTABLISHMENT OF A NATIONAL COMPUTERIZED IDENTIFICATION
REFERENCE SYSTEM REQUIRES A LEGISLATIVE ACT. THE ISSUANCE OF A.O.
NO. 308 BY THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES IS,
THEREFORE, AN UNCONSTITUTIONAL USURPATION OF THE LEGISLATIVE
POWERS OF THE CONGRESS OF THE REPUBLIC OF THE PHILIPPINES.
B.
THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR THE
IMPLEMENTATION OF A.O. NO. 308 IS AN UNCONSTITUTIONAL USURPATION
OF THE EXCLUSIVE RIGHT OF CONGRESS TO APPROPRIATE PUBLIC FUNDS
FOR EXPENDITURE.
C.
THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE
GROUNDWORK FOR A SYSTEM WHICH WILL VIOLATE THE BILL OF RIGHTS
ENSHRINED IN THE CONSTITUTION."[2]
Respondents counter-argue:

A.
THE INSTANT PETITION IS NOT A JUSTICIABLE CASE AS WOULD
WARRANT A JUDICIAL REVIEW;
B.
A.O. NO. 308 [1996] WAS ISSUED WITHIN THE EXECUTIVE AND
ADMINISTRATIVE POWERS OF THE PRESIDENT WITHOUT ENCROACHING ON
THE LEGISLATIVE POWERS OF CONGRESS;
C.
THE FUNDS NECESSARY FOR THE IMPLEMENTATION OF THE
IDENTIFICATION REFERENCE SYSTEM MAY BE SOURCED FROM THE BUDGETS
OF THE CONCERNED AGENCIES;
D.
A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S INTEREST IN
PRIVACY.[3]
We now resolve.
I
As is usual in constitutional litigation, respondents raise the threshold
issues relating to the standing to sue of the petitioner and the justiciability
of the case at bar. More specifically, respondents aver that petitioner has
no legal interest to uphold and that the implementing rules of A.O. No. 308
have yet to be promulgated.
These submissions do not deserve our sympathetic ear. Petitioner Ople
is a distinguished member of our Senate. As a Senator, petitioner is
possessed of the requisite standing to bring suit raising the issue that the
issuance of A.O. No. 308 is a usurpation of legislative power. [4] As taxpayer
and member of the Government Service Insurance System (GSIS), petitioner
can also impugn the legality of the misalignment of public funds and the
misuse of GSIS funds to implement A.O. No. 308. [5]
The ripeness for adjudication of the petition at bar is not affected by the
fact that the implementing rules of A.O. No. 308 have yet to be
promulgated. Petitioner Ople assails A.O. No. 308 as invalid per se and as
infirmed on its face. His action is not premature for the rules yet to be
promulgated cannot cure its fatal defects. Moreover, the respondents
themselves have started the implementation of A.O. No. 308 without
waiting for the rules. As early as January 19, 1997, respondent Social
Security System (SSS) caused the publication of a notice to bid for the
manufacture of the National Identification (ID) card. [6] Respondent Executive
Secretary Torres has publicly announced that representatives from the GSIS
and the SSS have completed the guidelines for the national identification
system.[7] All signals from the respondents show their unswerving will to
implement A.O. No. 308 and we need not wait for the formality of the rules
to pass judgment on its constitutionality. In this light, the dissenters

insistence that we tighten the rule on standing is not a commendable

stance as its result would be to throttle an important constitutional principle
and a fundamental right.
II
We now come to the core issues. Petitioner claims that A.O. No.
308 is not a mere administrative order but a law and hence, beyond
the power of the President to issue. He alleges that A.O. No. 308
establishes a system of identification that is all-encompassing in scope,
affects the life and liberty of every Filipino citizen and foreign resident, and
more particularly, violates their right to privacy.
Petitioner's sedulous concern for the Executive not to trespass on the
lawmaking domain of Congress is understandable. The blurring of the
demarcation line between the power of the Legislature to make laws and
the power of the Executive to execute laws will disturb their delicate
balance of power and cannot be allowed. Hence, the exercise by one
branch of government of power belonging to another will be given astricter
scrutiny by this Court.
The line that delineates Legislative and Executive power is not
indistinct. Legislative power is "the authority, under the Constitution, to
make laws, and to alter and repeal them." [8] The Constitution, as the will of
the people in their original, sovereign and unlimited capacity, has vested
this power in the Congress of the Philippines. [9] The grant of legislative
power to Congress is broad, general and comprehensive. [10] The legislative
body possesses plenary power for all purposes of civil government. [11] Any
power, deemed to be legislative by usage and tradition, is necessarily
possessed by Congress, unless the Constitution has lodged it elsewhere.
[12]
In fine, except as limited by the Constitution, either expressly or
impliedly, legislative power embraces all subjects and extends to matters of
general concern or common interest.[13]
While Congress is vested with the power to enact laws, the President
executes the laws.[14] The executive power is vested in the President. [15] It
is generally defined as the power to enforce and administer the laws. [16] It is
the power of carrying the laws into practical operation and enforcing their
due observance.[17]
As head of the Executive Department, the President is the Chief
Executive. He represents the government as a whole and sees to it that all
laws are enforced by the officials and employees of his department. [18] He
has control over the executive department, bureaus and offices. This means
that he has the authority to assume directly the functions of the executive
department, bureau and office, or interfere with the discretion of its officials.
[19]
Corollary to the power of control, the President also has the duty of

supervising the enforcement of laws for the maintenance of general peace

and public order. Thus, he is granted administrative power over bureaus
and offices under his control to enable him to discharge his duties
effectively.[20]
Administrative power is concerned with the work of applying
policies and enforcing orders as determined by proper
governmental organs.[21] It enables the President to fix a uniform
standard of administrative efficiency and check the official conduct
of his agents.[22] To this end, he can issue administrative orders,
rules and regulations.
Prescinding from these precepts, we hold that A.O. No. 308
involves a subject that is not appropriate to be covered by an
administrative order. An administrative order is:
"Sec. 3. Administrative Orders.-- Acts of the President which relate to
particular aspects of governmental operation in pursuance of his duties as
administrative head shall be promulgated in administrative orders." [23]
An administrative order is an ordinance issued by the President which
relates to specific aspects in the administrative operation of government. It
must be in harmony with the law and should be for the sole
purpose of implementing the law and carrying out the legislative
policy.[24] We reject the argument that A.O. No. 308 implements the
legislative policy of the Administrative Code of 1987. The Code is a
general law and "incorporates in a unified document the major structural,
functional and procedural principles of governance" [25] and "embodies
changes in administrative structures and procedures designed to serve the
people."[26] The Code is divided into seven (7) Books: Book I deals with
Sovereignty and General Administration, Book II with the Distribution of
Powers of the three branches of Government, Book III on the Office of the
President, Book IV on the Executive Branch, Book V on the Constitutional
Commissions, Book VI on National Government Budgeting, and Book VII on
Administrative Procedure. These Books contain provisions on the
organization, powers and general administration of the executive, legislative
and judicial branches of government, the organization and administration of
departments, bureaus and offices under the executive branch, the
organization and functions of the Constitutional Commissions and other
constitutional bodies, the rules on the national government budget, as well
as guidelines for the exercise by administrative agencies of quasi-legislative
and quasi-judicial powers. The Code covers both the internal administration
of government, i.e, internal organization, personnel and recruitment,
supervision and discipline, and the effects of the functions performed by

administrative officials on private individuals or parties outside government.

[27]

It cannot be simplistically argued that A.O. No. 308 merely implements

the Administrative Code of 1987. It establishes for the first time a National
Computerized Identification Reference System. Such a System requires a
delicate adjustment of various contending state policies-- the primacy of
national security, the extent of privacy interest against dossier-gathering by
government, the choice of policies, etc. Indeed, the dissent of Mr. Justice
Mendoza states that the A.O. No. 308 involves the all-important freedom of
thought. As said administrative order redefines the parameters of some
basic rights of our citizenry vis-a-vis the State as well as the line that
separates the administrative power of the President to make rules and the
legislative power of Congress, it ought to be evident that it deals with a
subject that should be covered by law.
Nor is it correct to argue as the dissenters do that A.O. No. 308 is not a
law because it confers no right, imposes no duty, affords no protection, and
creates no office. Under A.O. No. 308, a citizen cannot transact business
with government agencies delivering basic services to the people without
the contemplated identification card. No citizen will refuse to get this
identification card for no one can avoid dealing with government. It is thus
clear as daylight that without the ID, a citizen will have difficulty exercising
his rights and enjoying his privileges. Given this reality, the contention that
A.O. No. 308 gives no right and imposes no duty cannot stand.
Again, with due respect, the dissenting opinions unduly expand the limits
of administrative legislation and consequently erodes the plenary power of
Congress to make laws. This is contrary to the established approach
defining the traditional limits of administrative legislation. As well stated by
Fisher: "x x x Many regulations however, bear directly on the
public. It is here that administrative legislation must be restricted
in its scope and application. Regulations are not supposed to be a
substitute for the general policy-making that Congress enacts in
the form of a public law. Although administrative regulations are
entitled to respect, the authority to prescribe rules and regulations
is not an independent source of power to make laws." [28]
III
Assuming, arguendo, that A.O. No. 308 need not be the
subject of a
law,
still
it
cannot
pass constitutional
muster as an administrative legislation because
facially it violates the right to privacy. The essence of privacy is
the "right to be let alone." [29] In the 1965 case of Griswold v. Connecticut,
[30]
the United States Supreme Court gave more substance to the right of

privacy when it ruled that the right has a constitutional foundation. It held
that there is a right of privacy which can be found within the penumbras of
the First, Third, Fourth, Fifth and Ninth Amendments, [31] viz:
"Specific guarantees in the Bill of Rights have penumbras formed by
emanations from these guarantees that help give them life and substance x
x x. Various guarantees create zones of privacy. The right of association
contained in the penumbra of the First Amendment is one, as we have seen.
The Third Amendment in its prohibition against the quartering of soldiers `in
any house' in time of peace without the consent of the owner is another
facet of that privacy. The Fourth Amendment explicitly affirms the `right of
the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.' The Fifth Amendment in its
Self-Incrimination Clause enables the citizen to create a zone of privacy
which government may not force him to surrender to his detriment. The
Ninth Amendment provides: `The enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage others retained by the
people.'"
In the 1968 case of Morfe v. Mutuc,[32] we adopted the Griswold ruling
that there is a constitutional right to privacy. Speaking thru Mr.
Justice, later Chief Justice, Enrique Fernando, we held:
"xxx
The Griswold case invalidated a Connecticut statute which made the use of
contraceptives a criminal offense on the ground of its amounting to an
unconstitutional invasion of the right of privacy of married persons;
rightfully it stressed "a relationship lying within the zone of privacy created
by several fundamental constitutional guarantees." It has wider
implications though. The constitutional right to privacy has come into its
own.
So it is likewise in our jurisdiction. The right to privacy as such is accorded
recognition independently of its identification with liberty; in itself, it is fully
deserving of constitutional protection. The language of Prof. Emerson is
particularly apt: 'The concept of limited government has always included
the idea that governmental powers stop short of certain intrusions into the
personal life of the citizen. This is indeed one of the basic distinctions
between absolute and limited government. Ultimate and pervasive control
of the individual, in all aspects of his life, is the hallmark of the absolute
state. In contrast, a system of limited government safeguards a private
sector, which belongs to the individual, firmly distinguishing it from the
public sector, which the state can control. Protection of this private sector-protection, in other words, of the dignity and integrity of the individual--has

become increasingly important as modern society has developed. All the

forces of a technological age --industrialization, urbanization, and
organization-- operate to narrow the area of privacy and facilitate intrusion
into it. In modern terms, the capacity to maintain and support this enclave
of private life marks the difference between a democratic and a totalitarian
society.'"
Indeed, if we extend our judicial gaze we will find that the right
of privacy is recognized and enshrined in several provisions of our
Constitution.[33] It is expressly recognized in Section 3(1) of the Bill of
Rights:
"Sec. 3. (1) The privacy of communication and correspondence shall be
inviolable except upon lawful order of the court, or when public safety or
order requires otherwise as prescribed by law."
Other facets of the right to privacy are protected in various provisions of
the Bill of Rights, viz:[34]
"Sec. 1. No person shall be deprived of life, liberty, or property without due
process of law, nor shall any person be denied the equal protection of the
laws.
Sec. 2. The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever nature
and for any purpose shall be inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined personally
by the judge after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing the place to
be searched and the persons or things to be seized.
x

x.

Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the
court. Neither shall the right to travel be impaired except in the interest of
national security, public safety, or public health, as may be provided by law.
x

x.

Sec. 8. The right of the people, including those employed in the public and
private sectors, to form unions, associations, or societies for purposes not
contrary to law shall not be abridged.
Sec. 17. No person shall be compelled to be a witness against himself."

Zones of privacy are likewise recognized and protected in our laws.

The Civil Code provides that "[e]very person shall respect the dignity,
personality, privacy and peace of mind of his neighbors and other persons"
and punishes as actionable torts several acts by a person of meddling and
prying into the privacy of another. [35] It also holds a public officer or
employee or any private individual liable for damages for any violation of
the rights and liberties of another person, [36] and recognizes the privacy of
letters and other private communications. [37] The Revised
Penal
[38]
Code makes a crime the violation of secrets by an officer,
the revelation
[39]
of trade and industrial secrets,
and trespass to dwelling. [40]Invasion of
privacy is an offense in special laws like the Anti-Wiretapping Law, [41] the
Secrecy of Bank Deposit Act[42] and the Intellectual Property Code.
[43]
The Rules of Court on privileged communication likewise recognize the
privacy of certain information.[44]
Unlike the dissenters, we prescind from the premise that the
right to privacy is a fundamental right guaranteed by the
Constitution, hence, it is the burden of government to show that
A.O. No. 308 is justified by some compelling state interest and that
it is narrowly drawn. A.O. No. 308 is predicated on two
considerations: (1) the need to provide our citizens and foreigners with the
facility to conveniently transact business with basic service and social
security providers and other government instrumentalities and (2) the need
to reduce, if not totally eradicate, fraudulent transactions and
misrepresentations by persons seeking basic services. It is debatable
whether these interests are compelling enough to warrant the issuance of
A.O. No. 308. But what is not arguable is the broadness, the
vagueness, the overbreadth of A.O. No. 308 which if implemented
will put our people's right to privacy in clear and present danger.
The heart of A.O. No. 308 lies in its Section 4 which provides for a
Population Reference Number (PRN) as a "common reference number to
establish a linkage among concerned agencies" through the use of
"Biometrics Technology" and "computer application designs."
Biometry or biometrics is "the science of the application of statistical
methods to biological facts; a mathematical analysis of biological
data."[45] The term "biometrics" has now evolved into a broad
category of technologies which provide precise confirmation of an
individual's identity through the use of the individual's own
physiological and behavioral characteristics. [46] A physiological
characteristic is a relatively stable physical characteristic such as a
fingerprint, retinal scan, hand geometry or facial features. A behavioral
characteristic is influenced by the individual's personality and includes
voice print, signature and keystroke.[47] Most biometric identification

systems use a card or personal identification number (PIN) for initial

identification. The biometric measurement is used to verify that the
individual holding the card or entering the PIN is the legitimate owner of the
card or PIN.[48]
A most common form of biological encoding is finger-scanning where
technology scans a fingertip and turns the unique pattern therein into an
individual number which is called a biocrypt. The biocrypt is stored in
computer data banks[49] and becomes a means of identifying an individual
using a service. This technology requires one's fingertip to be scanned
every time service or access is provided. [50] Another method is the retinal
scan. Retinal scan technology employs optical technology to map the
capillary pattern of the retina of the eye. This technology produces a unique
print similar to a finger print.[51] Another biometric method is known as
the "artificial nose." This device chemically analyzes the unique
combination of substances excreted from the skin of people. [52] The latest on
the list of biometric achievements is the thermogram. Scientists have
found that by taking pictures of a face using infra-red cameras, a unique
heat distribution pattern is seen. The different densities of bone, skin, fat
and blood vessels all contribute to the individual's personal "heat
signature."[53]
In the last few decades, technology has progressed at a galloping
rate. Some science fictions are now science facts. Today, biometrics is
no longer limited to the use of fingerprint to identify an individual.
It is a new science that uses various technologies in encoding any and all
biological characteristics of an individual for identification. It is
noteworthy that A.O. No. 308 does not state what specific
biological characteristics and what particular biometrics technology
shall
be
used
to
identify
people
who
will
seek
its
coverage. Considering the banquet of options available to the
implementors of A.O. No. 308, the fear that it threatens the right to
privacy of our people is not groundless.
A.O. No. 308 should also raise our antennas for a further look
will show that it does not state whether encoding of data is limited
to biological information alone for identification purposes. In fact,
the Solicitor General claims that the adoption of the Identification Reference
System will contribute to the "generation of population data for
development planning."[54] This is an admission that the PRN will not be used
solely for identification but for the generation of other data with remote
relation to the avowed purposes of A.O. No. 308. Clearly, the
indefiniteness of A.O. No. 308 can give the government the roving
authority to store and retrieve information for a purpose other than
the identification of the individual through his PRN.

The potential for misuse of the data to be gathered under A.O.

No. 308 cannot be underplayed as the dissenters do. Pursuant to
said administrative order, an individual must present his PRN everytime he
deals with a government agency to avail of basic services and security. His
transactions with the government agency will necessarily be recorded-whether it be in the computer or in the documentary file of the agency. The
individual's file may include his transactions for loan availments, income tax
returns, statement of assets and liabilities, reimbursements for medication,
hospitalization, etc. The more frequent the use of the PRN, the better
the chance of building a huge and formidable information base
through the electronic linkage of the files. [55] The data may be
gathered for gainful and useful government purposes; but the
existence of this vast reservoir of personal information constitutes
a covert invitation to misuse, a temptation that may be too great
for some of our authorities to resist.[56]
We can even grant, arguendo, that the computer data file will be limited
to the name, address and other basic personal information about the
individual.[57] Even that hospitable assumption will not save A.O. No. 308
from constitutional infirmity for again said order does not tell us in
clear and categorical terms how these information gathered shall
be handled. It does not provide who shall control and access the
data, under what circumstances and for what purpose. These factors
are essential to safeguard the privacy and guaranty the integrity of the
information.[58] Well to note, the computer linkage gives other government
agencies access to the information. Yet, there are no controls to guard
against leakage of information. When the access code of the control
programs of the particular computer system is broken, an intruder, without
fear of sanction or penalty, can make use of the data for whatever purpose,
or worse, manipulate the data stored within the system. [59]
It is plain and we hold that A.O. No. 308 falls short of assuring that
personal information which will be gathered about our people will only be
processed for unequivocally specified purposes.[60] The lack of proper
safeguards in this regard of A.O. No. 308 may interfere with the individual's
liberty of abode and travel by enabling authorities to track down his
movement; it may also enable unscrupulous persons to access confidential
information and circumvent the right against self-incrimination; it may pave
the way for "fishing expeditions" by government authorities and evade the
right against unreasonable searches and seizures. [61] The possibilities of
abuse and misuse of the PRN, biometrics and computer
technology are accentuated when we consider that the individual
lacks control over what can be read or placed on his ID, much less
verify the correctness of the data encoded.[62] They threaten the
very abuses that the Bill of Rights seeks to prevent.[63]

The ability of a sophisticated data center to generate a

comprehensive cradle-to-grave dossier on an individual and transmit it
over a national network is one of the most graphic threats of the computer
revolution.[64] The computer is capable of producing a comprehensive
dossier on individuals out of information given at different times and for
varied purposes.[65] It can continue adding to the stored data and keeping
the information up to date. Retrieval of stored data is simple. When
information of a privileged character finds its way into the computer, it can
be extracted together with other data on the subject. [66] Once extracted, the
information is putty in the hands of any person. The end of privacy begins.
Though A.O. No. 308 is undoubtedly not narrowly drawn, the dissenting
opinions would dismiss its danger to the right to privacy as speculative and
hypothetical. Again, we cannot countenance such a laidback posture. The
Court will not be true to its role as the ultimate guardian of the people's
liberty if it would not immediately smother the sparks that endanger their
rights but would rather wait for the fire that could consume them.
We reject the argument of the Solicitor General that an
individual has a reasonable expectation of privacy with regard to
the National ID and the use of biometrics technology as it stands on
quicksand. The reasonableness of a person's expectation of privacy
depends on a two-part test: (1) whether by his conduct, the individual has
exhibited an expectation of privacy; and (2) whether this expectation is one
that society recognizes as reasonable. [67] The factual circumstances of the
case determines the reasonableness of the expectation. [68]However, other
factors, such as customs, physical surroundings and practices of a particular
activity, may serve to create or diminish this expectation. [69] The use of
biometrics and computer technology in A.O. No. 308 does not assure the
individual of a reasonable expectation of privacy. [70] As technology advances,
the level of reasonably expected privacy decreases. [71] The measure of
protection granted by the reasonable expectation diminishes as relevant
technology becomes more widely accepted. [72] The security of the computer
data file depends not only on the physical inaccessibility of the file but also
on the advances in hardware and software computer technology. A.O. No.
308 is so widely drawn that a minimum standard for a reasonable
expectation of privacy, regardless of technology used, cannot be
inferred from its provisions.
The rules and regulations to be drawn by the IACC cannot
remedy this fatal defect. Rules and regulations merely implement the
policy of the law or order. On its face, A.O. No. 308 gives the IACC virtually
unfettered discretion to determine the metes and bounds of the ID System.
Nor do our present laws provide adequate safeguards for
a reasonable expectation of privacy. Commonwealth Act No. 591

penalizes the disclosure by any person of data furnished by the individual to

the NSO with imprisonment and fine. [73] Republic Act No. 1161 prohibits
public disclosure of SSS employment records and reports. [74] These laws,
however, apply to records and data with the NSO and the SSS. It is not
clear whether they may be applied to data with the other government
agencies forming part of the National ID System. The need to clarify the
penal aspect of A.O. No. 308 is another reason why its enactment should be
given to Congress.
Next, the Solicitor General urges us to validate A.O. No. 308's abridgment
of the right of privacy by using the rational relationship test.[75]He
stressed that the purposes of A.O. No. 308 are: (1) to streamline and
speed
up the implementation of basic government services,
(2) eradicate fraud by avoiding duplication of services, and (3) generate
population data for development planning. He concludes that these
purposes justify the incursions into the right to privacy for the means are
rationally related to the end.[76]
We are not impressed by the argument. In Morfe v. Mutuc,[77] we
upheld the constitutionality of R.A. 3019, the Anti-Graft and Corrupt
Practices Act, as a valid police power measure. We declared that the law, in
compelling a public officer to make an annual report disclosing his assets
and liabilities, his sources of income and expenses, did not infringe on the
individual's right to privacy. The law was enacted to promote morality in
public administration by curtailing and minimizing the opportunities for
official corruption and maintaining a standard of honesty in the public
service.[78]
The same circumstances do not obtain in the case at bar. For one, R.A.
3019 is a statute, not an administrative order. Secondly, R.A. 3019 itself is
sufficiently detailed. The law is clear on what practices were prohibited and
penalized, and it was narrowly drawn to avoid abuses. In the case at bar,
A.O. No. 308 may have been impelled by a worthy purpose, but, it cannot
pass constitutional scrutiny for it is not narrowly drawn. And we now hold
that when the integrity of a fundamental right is at stake, this
court will give the challenged law, administrative order, rule or
regulation a stricter scrutiny. It will not do for the authorities to
invoke the presumption of regularity in the performance of official
duties. Nor is it enough for the authorities to prove that their act
is not irrational for a basic right can be diminished, if not defeated,
even when the government does not act irrationally. They must
satisfactorily show the presence of compelling state interests and
that the law, rule, or regulation is narrowly drawn to preclude
abuses. This approach is demanded by the 1987 Constitution whose entire
matrix is designed to protect human rights and to prevent

authoritarianism. In case of doubt, the least we can do is to lean towards

the stance that will not put in danger the rights protected by the
Constitution.
The case of Whalen v. Roe[79] cited by the Solicitor General is also offline. In Whalen, the United States Supreme Court was presented with the
question of whether the State of New York could keep a centralized
computer record of the names and addresses of all persons who obtained
certain drugs pursuant to a doctor's prescription. The New York State
Controlled Substances Act of 1972 required physicians to identify patients
obtaining prescription drugs enumerated in the statute, i.e., drugs with a
recognized medical use but with a potential for abuse, so that the names
and addresses of the patients can be recorded in a centralized computer file
of the State Department of Health. The plaintiffs, who were patients and
doctors, claimed that some people might decline necessary medication
because of their fear that the computerized data may be readily available
and open to public disclosure; and that once disclosed, it may stigmatize
them as drug addicts.[80] The plaintiffs alleged that the statute invaded a
constitutionally protected zone of privacy, i.e, the individual interest in
avoiding disclosure of personal matters, and the interest in independence in
making certain kinds of important decisions. The U.S. Supreme Court held
that while an individual's interest in avoiding disclosure of personal matters
is an aspect of the right to privacy, the statute did not pose a grievous
threat to establish a constitutional violation. The Court found that the
statute was necessary to aid in the enforcement of laws designed to
minimize the misuse of dangerous drugs.The patient-identification
requirement was a product of an orderly and rational legislative
decision made upon recommendation by a specially appointed
commission which held extensive hearings on the matter. Moreover,
the statute was narrowly drawn and contained numerous
safeguards against indiscriminate disclosure. The statute laid down
the procedure and requirements for the gathering, storage and retrieval of
the information. It enumerated who were authorized to access the data. It
also prohibited public disclosure of the data by imposing penalties for its
violation. In view of these safeguards, the infringement of the patients' right
to privacy was justified by a valid exercise of police power. As we discussed
above, A.O. No. 308 lacks these vital safeguards.
Even while we strike down A.O. No. 308, we spell out in neon
that the Court is not per se against the use of computers to
accumulate, store, process, retrieve and transmit data to improve
our bureaucracy. Computers work wonders to achieve the efficiency which
both government and private industry seek. Many information systems in
different countries make use of the computer to facilitate important social
objectives, such as better law enforcement, faster delivery of public

services, more efficient management of credit and insurance programs,

improvement of telecommunications and streamlining of financial activities.
[81]
Used wisely, data stored in the computer could help good administration
by making accurate and comprehensive information for those who have to
frame policy and make key decisions. [82] The benefits of the computer
has revolutionized information technology. It developed the internet,
[83]
introduced the concept of cyberspace [84]and the information
superhighway where the individual, armed only with his personal computer,
may surf and search all kinds and classes of information from libraries and
databases connected to the net.
In no uncertain terms, we also underscore that the right to
privacy does not bar all incursions into individual privacy. The right
is not intended to stifle scientific and technological advancements
that enhance public service and the common good. It merely requires
that the law be narrowly focused[85] and a compelling interest justify such
intrusions.[86] Intrusions into the right must be accompanied by proper
safeguards and well-defined standards to prevent unconstitutional
invasions. We reiterate that any law or order that invades individual privacy
will be subjected by this Court to strict scrutiny. The reason for this stance
was laid down in Morfe v. Mutuc, to wit:
"The concept of limited government has always included the idea that
governmental powers stop short of certain intrusions into the personal life of
the citizen. This is indeed one of the basic distinctions between absolute
and limited government. Ultimate and pervasive control of the individual, in
all aspects of his life, is the hallmark of the absolute state. In contrast, a
system of limited government safeguards a private sector, which belongs to
the individual, firmly distinguishing it from the public sector, which the state
can control. Protection of this private sector-- protection, in other words, of
the dignity and integrity of the individual-- has become increasingly
important as modern society has developed. All the forces of a technological
age-- industrialization, urbanization, and organization-- operate to narrow
the area of privacy and facilitate intrusion into it. In modern terms, the
capacity to maintain and support this enclave of private life marks the
difference between a democratic and a totalitarian society." [87]
IV
The right to privacy is one of the most threatened rights of man
living in a mass society. The threats emanate from various sources-governments, journalists, employers, social scientists, etc. [88] In the case at
bar, the threat comes from the executive branch of government which by
issuing A.O. No. 308 pressures the people to surrender their privacy by
giving information about themselves on the pretext that it will facilitate

delivery of basic services. Given the record-keeping power of the

computer, only the indifferent will fail to perceive the danger
that A.O. No. 308 gives the government the power to compile a
devastating dossier against unsuspecting citizens. It is timely to take
note of the well-worded warning of Kalvin, Jr., "the disturbing result could be
that everyone will live burdened by an unerasable record of his past and his
limitations. In a way, the threat is that because of its record-keeping, the
society will have lost its benign capacity to forget." [89] Oblivious to this
counsel, the dissents still say we should not be too quick in labelling the
right to privacy as a fundamental right. We close with the statement that
the right to privacy was not engraved in our Constitution for flattery.
IN VIEW WHEREOF, the petition is granted and Administrative Order
No. 308 entitled "Adoption of a National Computerized Identification
Reference System" declared null and void for being unconstitutional.
SO ORDERED.

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 OfficerIn-Charge, Finance Services Department of the Commission on
Elections, respondents.
DECISION
CARPIO, J.:

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 COMELECs
Education and Information Department (EID for brevity).
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 confirmation.[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 petitioners
reassignment in a Memorandum dated April 14, 2001 [12] addressed to the
COMELEC en banc.Specifically, Commissioner Sadain questioned Benipayos
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. Whether or not the instant petition satisfies all the requirements
before this Court may exercise its power of judicial review in
constitutional cases;
2. 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. 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. Whether or not Benipayos 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. Whether or not the Officer-in-Charge of the COMELECs 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 thead 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
petitioners
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 x x x
Benipayos authority as Chairman of the Commission on Elections,
and as the Commissions Chief Executive Officer.[21] Evidently,
respondents anchor the legality of petitioners reassignment on Benipayos
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 petitioners
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
Benipayos assumption of office. Petitioners 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 petitioners 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 petitioners reassignment hinges on the
constitutionality of Benipayos ad interim appointment and assumption of
office. Unless the constitutionality of Benipayos ad interim appointment
and assumption of office is resolved, the legality of petitioners
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 Courts 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.
[24]

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 IXC of the Constitution.
Based on petitioners 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 petitioners 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 petitioners 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 an ad
interim appointment is permanent in character. In Summers vs. Ozaeta,
[25]
decided on October 25, 1948, we held that:
x x x 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 Blacks Law Dictionary which defines the term ad
interim to mean in the meantime or for the time being. Hence,
petitioner argues that anad interim appointment is undoubtedly temporary
in character. This argument is not new and was answered by this Court
in Pamantasan ng Lungsod ng Maynilavs. Intermediate Appellate Court,
[27]
where we explained that:
x x x 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 (Blacks 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. Estebans 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. x x x. (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 anad 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 respondents appointment as Executive
Assistant II was recognized and attested to by the Civil Service Commission
Regional Office No. 12. Petitioners submission that private
respondents 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,
anad
interim appointment becomes complete and
irrevocable
once
the
appointee has qualified into office. The withdrawal or revocation of an ad
interimappointment 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
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 Presidents
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
Presidents 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: X x x our compulsory recess now is only 30 days. So under
such circumstances, is it necessary to provide for ad
interimappointments? Perhaps there should be a little discussion on that.
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 x x x.
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
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 interimappointments 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 x x x 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 interimappointment 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. ReyesClaravall 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 Presidents 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 Presidents 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 agues 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. X x x. (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.
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. (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
interimappointments 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 interimappointees. 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 x x x 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)
In 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 Presidents
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 interimappointments, 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
[58]
sponsored 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 sponsors 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 Committees 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 appointees 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 ones 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 Benipayos 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.
Petitioners 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. Chairman as Executive Officer; Powers and Duties. The
Chairman, who shall be the Chief Executive Officer of the Commission, shall:
xxx
(4) 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.
Petitioners 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.[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. InSecretary 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 moments notice, conformably to established
jurisprudence x x x.
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 x x x.
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. Prohibited Acts. The following shall be guilty of an
election offense:
xxx
(h) 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 petitioners 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
Sec. 261. Prohibited Acts. The following shall be guilty of an
election offense:
xxx
(h) 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 jurecapacity, is Benipayo. The COMELEC en banc, in COMELEC
Resolution No. 3300, approved the transfer or reassignment of COMELEC
personnel during the election period. Thus, Benipayos 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, Benipayos 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.
SO ORDERED.