I. SHORT TITLE: MATIBAG VS.

BENIPAYO
II. FULL TITLE: MA. J. ANGELINA G. MATIBAG, petitioner,. Vs. ALFREDO L.
BENIPAYO, RESURRECTION Z. BORRA, FLORENTINO A. TUASON, JR.,
VELMA J. CINCO, and GIDEON C. DE GUZMAN in his capacity as Officer- in
Charge, Finance Services Department of the Commission on Elections,
respondents. G. R. No. 149036 April 2, 2002
III. TOPIC: The Appointing Power of the President Ad Interim Appointment
IV. STATEMENT OF FACTS:
The COMELEC en banc appointed Ma. J. Angelina G. Matibag
(Matibag), petitioner as Acting Director IV of the 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
Temporary capacity.
On March 22, 2001, President Gloria Macapagal Arroyo (GMA)
appointed, ad interim, Benipayo as COMELEC Chairman, and Borra and
Tuason as COMELEC Commissioners, each for a term of seven years
and all expiring on February 2, 2008. The Office of the President submitted
to the Commission on Appointments the ad interim appointments of
Benipayo, Borra and Tuason for confirmation. However, the Commission
on Appointments did not act on said appointments.
Congress adjourned before the Commission on Appointments could
act on their appointments.
In his capacity as COMELEC Chairman, Benipayo issued a
Memorandum dated April 11, 2001 addressed to petitioner as Director IV of
the EID and reassigning petitioner to the Law Department. Petitioner
requested Benipayo to reconsider her relief as Director IV of the EID and
her reassignment to the Law Department. Benipayo denied her request for
reconsideration.
V. STATEMENT OF THE CASE:
Petitioner Matibag questions the constitutionality of the appointment and
the right to hold office of Benipayo, as Chairman of COMELEC, Borra and
Tuason as COMELEC Commissioners.
VI. ISSUE:

Whether or not the assumption of office by Benipayo, Borra and Tuason

on the basis of the ad interim appointments issued by the President amount
to temporary appoinmnet prohibited by Section 1 (2), Article IX- C of the
Constitution?
VII.

RULING:
No. 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effect immediately and can no longer be withdrawn by the President once the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 the Congress.

VIII.

DISPOSITIVE PORTION:
Wherefore, the petition is dismissed for lack of merit. Costs against
petitioner.

CONSTITUTIONAL LAW 1 DEANS CIRCLE

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too clear to be differently read. Hence, Agra could not validly hold any other office or employment during his
tenure as the Acting Solicitor General, because the Constitution has not otherwise so provided.


ULPIANO P. SARMIENTO III AND JUANITO G. ARCILLA vs. SALVADOR MISON, AND GUILLERMO
CARAGUE
G.R. No. 79974 December 17, 1987 J. Padilla


Except as to those officers whose appointments require the consent of the Commission on Appointments
by express mandate of the first sentence in Sec. 16, Art. VII, appointments of other officers are left to the
President without need of confirmation by the Commission on Appointments.

Facts:


Mison was appointed as the Commissioner of the Bureau of Customs by President Aquino. Sarmiento
and Arcilla are assailing the said appointment stating that the said appointment is not valid since it was not
submitted to the Commission on Appointment for approval further arguing that under the constitution the
appointments made for Heads of Bureaus need confirmation from the COA.

Issue:


Whether the appointment of Mison is valid.

Ruling:


YES. In the 1987 Constitution the clear and expressed intent of its framers was to exclude
presidential appointments from confirmation by the Commission on Appointments, except appointments to
offices expressly mentioned in the first sentence of Sec. 16, Article VII. Consequently, there was no reason to
use in the third sentence of Sec. 16, Article VII the word "alone" after the word "President" in providing that
Congress may by law vest the appointment of lower-ranked officers in the President alone, or in the courts, or
in the heads of departments, because the power to appoint officers whom he (the President) may be
authorized by law to appoint is already vested in the President, without need of confirmation by the
Commission on Appointments, in the second sentence of the same Sec. 16, Article VII.


Moreover, the President is expressly authorized by law to appoint the Commissioner of the Bureau of
Customs under RA 1937 and PD 34.


After the effectivity of the 1987 Constitution, Rep. Act No. 1937 and PD No. 34 have to be read in
harmony with Sec. 16, Art. VII, with the result that, while the appointment of the Commissioner of the Bureau
of Customs is one that devolves on the President, as an appointment he is authorized by law to make, such
appointment, however, no longer needs the confirmation of the Commission on Appointments.


MA. J. ANGELINA G. MATIBAG v. ALFREDO L. BENIPAYO, RESURRECCION Z. BORRA, FLORENTINO A.
TUASON, JR., VELMA J. CINCO, and GIDEON C. DE GUZMAN
G.R. NO. 149036, APRIL 2, 2002, J. CARPIO


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. In order to determine whether
the renewal of an ad interim appointment violates the prohibition on reappointment under Section 1 (2), Article
IX-C of the Constitution we must distinguish those which weredisapproved from those which were by-passed, for
the by-passed reappointment is valid and allowed while the disapproved is not and can no longer be renewed.

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FACTS:


On March 22, 2001, President Gloria Macapagal Arroyo appointed, ad interim, Benipayo as COMELEC
Chairman, and Borra and Tuason as COMELEC Commissioners, each for a term of seven years and all expiring
on February 2, 2008. However, the Commission on Appointments did not act on said appointments.
Consequently, 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.
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.


Petitioner Ma. J. Angelina G. Matibag filed the instant petition questioning the appointments Matibag
claims that the ad interim appointments of Benipayo, Borra and Tuason violate the prohibitions on
temporary appointments and reappointments of its Chairman and members.

Issues:

1.
Whether 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.
2.
Whether 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.

RULING:

1.
NO. An ad interim appointment is a permanent appointment because it takes effect immediately and
can no longer be withdrawn by the President once the appointee has qualified into office. The fact that it is
subject to confirmation by the 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. 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.


In the instant case, the President did in fact appoint permanent Commissioners to fill the vacancies in
the COMELEC, subject only to confirmation by the Commission on Appointments. Benipayo, Borra and Tuason
were extended permanent appointments during the recess of Congress. They were not appointed or
designated in a temporary or acting capacity, unlike Commissioner Haydee Yorac in Brillantes vs. Yorac and
Solicitor General Felix Bautista in Nacionalista Party vs. Bautista. The ad interim appointments of Benipayo,
Borra and Tuason are expressly allowed by the Constitution which authorizes the President, during the
recess of Congress, to make appointments that take effect immediately.

2.
NO. We must distinguish those which were disapproved from those which were by-passed. 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. On the contrary 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.


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

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were confirmed by the Commission on Appointments. A reappointment presupposes a previous confirmed
appointment. The same ad interim appointments and renewals of appointments will also not breach the
seven-year term limit because all the appointments and renewals of appointments of Benipayo, Borra and
Tuason are for a fixed term expiring on February 2, 2008. Any delay in their confirmation will not extend the
expiry date of their terms of office. 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.


AQUILINO Q. PIMENTEL, JR. v. EXEC. SECRETARY EDUARDOR. ERMITA, FLORENCIO B. ABAD, AVELINO
J. CRUZ, JR.
G.R. No. 164978, OCTOBER 13, 2005, J. CARPIO


Being an alter ego of the president, a department secretary may be appointed in an acting capacity even
when the congress is in session in line with its purpose as a stop-gap measure intended to fill an office for a
limited time until the appointment of a permanent occupant to the office.

Facts:


This is a petition to declare unconstitutional the appointments issued by President Gloria MacapagalArroyo to respondents Abad et al as Department Secretaries in an acting capacity while the Congress is in
session. Nonetheless, when Congress adjourned on 22 September 2004. On 23 September 2004, President
Arroyo issued ad interim appointments to respondents as secretaries of the departments to which they were
previously appointed in an acting capacity.

Issue:


Whether the appointment of respondents Abad et.al as acting secretaries without the consent of the
Commission on Appointments while Congress is in session is unconstitutional.

Ruling:


NO. The essence of an appointment in an acting capacity is its temporary nature. It is a stop-gap
measure intended to fill an office for a limited time until the appointment of a permanent occupant to the
office. In case of vacancy in an office occupied by an alter ego of the President, such as the office of a
department secretary, the President must necessarily appoint an alter ego of her choice as acting secretary
before the permanent appointee of her choice could assume office. The office of a department secretary may
become vacant while Congress is in session. Since a department secretary is the alter ego of the President, the
acting appointee to the office must necessarily have the Presidents confidence. Thus, by the very nature of the
office of a department secretary, the President must appoint in an acting capacity a person of her choice even
while Congress is in session. That person may or may not be the permanent appointee, but practical reasons
may make it expedient that the acting appointee will also be the permanent appointee.


Further, contrary to the claims of petitioner members of congress, we find no abuse in the present
case. In addition to the 1 year limit of effectivity of temporary appointments the absence of abuse is readily
apparent from President Arroyos issuance of ad interim appointments to respondents immediately upon the
recess of Congress, way before the lapse of one year.


ARMITA B. RUFINO, v. BALTAZAR N. ENDRIGA ET AL.
G.R. NO. 139554, JULY 21, 2006, J. CARPIO

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49

Matibag vs. Benipayo

*

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.
Courts Judicial Review An employees personal and
substantial injury, if a particular appointee is not the lawful
COMELEC Chairman, clothes her with the requisite locus standi
to raise the constitutional issue regarding the ad interim
appointment of said COMELEC Chairman.Benipayo reassigned
petitioner from the EID, where she was Acting Director, to the
Law Department, where she was placed on detail service.
Respondents claim that the reassignment was pursuant to x x x
Benipayos authority as Chairman of the Commission on Elections,
and as the Commissions Chief Executive Officer. 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.

Same Same The earliest opportunity to raise a constitutional

issue is to raise it in the pleadings before a competent court that
can resolve the same.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
______________
*

EN BANC.

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SUPREME COURT REPORTS ANNOTATED

Matibag vs. Benipayo

the constitutional issue was raised at the earliest opportunity.

The earliest opportunity to raise a constitutional issue is to raise
it in the pleadings before a competent court that can resolve the
same, such that, if it is not raised in the pleadings, it cannot be
considered at the trial, and, if not considered at the trial, it cannot
be considered on appeal. Petitioner questioned the
constitutionality of the ad interim appointments of Benipayo,
Borra and Tuason when she filed her petition before this Court,
which is the earliest opportunity for pleading the constitutional
issue before a competent body. Furthermore, this Court may
determine, in the exercise of sound discretion, the time when a
constitutional issue may be passed upon. There is no doubt
petitioner raised the constitutional issue on time.
Same Same In keeping with the Supreme 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, the Supreme Court may even brush aside
technicalities of procedure and resolve any constitutional issue
raised.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.
Administrative Law Public Officers Appointments Words
and Phrases 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 officethe fact that it is subject to confirmation by the
Commission on Appointments does not alter its permanent
character.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
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Matibag vs. Benipayo

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.
Same Same Same Same The Constitution imposes no

condition on the effectivity of an ad interim appointment, and thus

an ad interim appointment takes effect immediately In case of an
appointment made by the President when Congress is in session,
the President nominates, and only upon the consent of the
Commission on Appointments may the person thus named assume
office, while with reference to an ad interim appointment, it takes
effect at once, and the individual chosen may thus qualify and
perform his function without loss of time.The Constitution
imposes no condition on the effectivity of an ad interim
appointment, and thus an ad interim appointment takes effect
immediately. The appointee can at once assume office and
exercise, as a de jure officer, all the powers pertaining to the
office. In Pacete vs. Secretary of the Commission on Appointments,
this Court elaborated on the nature of an ad 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.
Same Same Same Same 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.The term ad interim
appointment, as used in letters of appointment signed by the
President, means a permanent appointment made by the
President in the meantime that Congress is in recess. It does not
mean a temporary appointment that can be withdrawn or revoked
at any time. The term, although not found in the text of the
Constitution, has acquired a definite legal meaning under
Philippine jurisprudence. The Court had again occasion to explain
the nature of an ad interim appointment in the
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SUPREME COURT REPORTS ANNOTATED

Matibag vs. Benipayo

more recent case of Marohombsar vs. Court of Appeals, where the

Court stated: We have already mentioned that an ad interim
appointment is not descriptive of the nature of the appointment,
that is, it is not indicative of whether the appointment is
temporary or in an acting capacity, rather it denotes the manner
in which the appointment was made. In the instant case, the
appointment extended to private respondent by then MSU
President Alonto, Jr. was issued without condition nor limitation
as to tenure. The permanent status of private 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)
Same Same Same Same An ad interim appointment
becomes complete and irrevocable once the appointee has qualified
into office, and the withdrawal or revocation of an ad interim
appointment is possible only if it is communicated to the appointee
before the moment he qualifies, as any withdrawal or revocation
thereafter is tantamount to removal from office.An ad interim
appointee who has qualified and assumed office becomes at that
moment a government employee and therefore part of the civil
service. He enjoys the constitutional protection that [n]o officer
or employee in the civil service shall be removed or suspended
except for cause provided by law. Thus, an ad interim
appointment becomes complete and irrevocable once the
appointee has qualified into office. The withdrawal or revocation
of an ad interim appointment is possible only if it is
communicated to the appointee before the moment he qualifies,
and any withdrawal or revocation thereafter is tantamount to
removal from office. Once an appointee has qualified, he acquires
a legal right to the office which is protected not only by statute
but also by the Constitution. He can only be removed for cause,
after notice and hearing, consistent with the requirements of due
process.
Same Same Same An ad interim appointment can be
terminated for two causes specified in the Constitutionfirst, by
the disapproval of his ad interim appointment by the Commission
on Appointments, and, second, by the adjournment of Congress
without the Commission on Appointments acting on his
appointment.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 resolu
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Matibag vs. Benipayo

tory 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.
Same Same Same Security of Tenure An appointment or
designation in a temporary or acting capacity is the kind of
appointment that the Constitution prohibits the President from
making to the three independent constitutional commissions.
While an ad interim appointment is permanent and irrevocable
except as provided by law, an appointment or designation in a
temporary or acting capacity can be withdrawn or revoked at the
pleasure of the appointing power. A temporary or acting
appointee does not enjoy any security of tenure, no matter how
briefly. This is the kind of appointment that the Constitution
prohibits the President from making to the three independent
constitutional commissions, including the COMELEC.
Same Same Same Constitutional Commissions Commission
on Elections Statutory Construction 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.While the Constitution
mandates that the COMELEC shall be independent, 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.
Same Same Same Commission on Appointments Principle
of Check and Balance An ad interim appointee disapproved by the
Commission on Appointments can no longer be extended a new
appointmentthe disapproval is a final decision of the
Commission on Appointments in the exercise of its checking power
on the appointing authority of the President.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
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SUPREME COURT REPORTS ANNOTATED

Matibag vs. Benipayo

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.
Same Same Same Same Same A bypassed 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.An ad interim appointment that is bypassed because
of lack of time or failure of the Commission on Appointments to
organize is another matter. A bypassed 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 bypassed 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 bypassed
appointment can be considered again if the President renews the
appointment.
Same Same Same Same Same Statutory Construction The
jurisprudence under the 1935 Constitution governing ad interim
appointments by the President is doubtless applicable to the
present Constitution.Guevara was decided under the 1935
Constitution from where the second paragraph of Section 16,
Article VII of the present Constitution on ad interim
appointments was lifted verbatim. 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 bypassed ad interim
appointees. This is a continuation of the wellrecognized 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.
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Matibag vs. Benipayo

Same Same Same Same Same The prohibition on

reappointment in Section 1 (2), Article IXC of the Constitution
applies neither to disapprove nor bypassed ad interim
appointments.The prohibition on reappointment in Section 1
(2), Article IXC of the Constitution applies neither to disapproved
nor bypassed 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 IXC of the Constitution.
A bypassed 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.
Same Same Same Same Same The framers of the
Constitution made it quite clear that any person who has served
any term of office as COMELEC memberwhether 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 timecan no longer be
reappointed to the COMELEC.The framers of the Constitution
made it quite clear that any person who has served any term of
office as COMELEC memberwhether 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 timecan 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. (Emphasis supplied)
Same Same Same Same Same An ad interim appointment
that has lapsed by inaction of the Commission on Appointments
does not constitute a term of officethe period from the time the ad
interim appointment is made to the time it lapses is neither a fixed
term nor an unexpired term.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
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Matibag vs. Benipayo

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.
Same Same Same Same Same Words and Phrases 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.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.
Same Same Same Same Same The Supreme Court will not
subscribe to a proposition that will wreak havoc on vital
government services.In the great majority of cases, the
Commission on Appointments usually fails to act, for lack of time,
on the ad interim appointments first issued to appointees. If such
ad interim appointments can no longer be renewed, the President
will certainly hesitate to make ad interim appointments because
most of her appointees will effectively be disapproved by mere
inaction of the Commission on Appointments. This will nullify the
constitutional power of the President to make ad interim
appointments, a power intended to avoid disruptions in vital
government services. This Court cannot subscribe to a proposition
that will wreak havoc on vital government services.
Same Same Same Same Same The framers of the present
Constitution prohibited reappointments for two reasonsfirst, to
prevent a second appointment for those who have been previously
appointed and confirmed even if they served for less than seven
years, and, second, to insure that the members of the three
constitutional commissions do not serve beyond the fixed term of
seven years.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.

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57

Matibag vs. Benipayo

Same Same Same Same Same One who has been given an
ad interim appointment as COMELEC Chairman is a de jure
officer, and consequently, he has full authority to exercise all the
powers of that office for so long as his ad interim appointment
remains effective The Chairman, as the Chief Executive of the
COMELEC, is expressly empowered on his own authority, without
having to secure the approval of the COMELEC en banc, to
transfer or reassign COMELEC personnel in accordance with Civil
Service Law.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: x x x (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.
Same Same Same Same Same Transfers Security of
Tenure Career Executive Service One who is not a Career
Executive Service (CES) officer, nor a holder of a 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,
does not enjoy security of tenure as Director IV.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.

Petitioner is not a Career Executive Service (CES) officer, and
neither does she hold Career Executive Service Eligibility, which
are necessary qualifications for holding the position of Director IV
as prescribed in the Qualifications Standards (Revised 1987)
issued by the Civil Service Commission. Obviously, petitioner
does not enjoy security of tenure as Director IV. In Secretary of
Justice Serafin Cuevas vs. Atty. Josefina G. Bacal, 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
58

58

SUPREME COURT REPORTS ANNOTATED

Matibag vs. Benipayo

be considered permanent, and she can claim no security of tenure

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

SPECIAL CIVIL ACTION in the Supreme Court.

Prohibition.
The facts are stated in the opinion of the Court.
Brillantes, Navarro, Jumamil, Arcilla, Escolin &
Martinez Law Offices for petitioner.
The Solicitor General for respondents.
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59

Matibag vs. Benipayo

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
1
Velma J. Cinco (Cinco for brevity) as Director IV of the
COMELECs Education and Information Department
(EID for brevity).