MA. J. ANGELINA G. MATIBAG, petitioner, vs. ALFREDO L. in office of Benipayo, Borra and Tuason.

Tuason. She claimst that is not raised in the pleadings, it cannot be considered at the
BENIPAYO, RESURRECCION Z. BORRA, FLORENTINO A. the appointments violated the provisions on independence trial, and, if not considered at the trial, it cannot be
TUASON, JR., VELMA J. CINCO, and GIDEON C. DE of the COMELEC, as well as prohibitions on temporary considered on appeal.” Petitioner questioned the
GUZMAN in his capacity as Officer-in-Charge, Finance appointments and reappointments of its Chairman and constitutionality of the ad interim appointments of
Services Department of the Commission on Elections, members. She also assailed her illegal removal and her Benipayo, Borra and Tuason when she filed her petition
respondents.; CARPIO, J. reassignment to the Law Department. She challenges the before this Court, which is the earliest opportunity for
designation of Cinco as OIC of EID. pleading the constitutional issue before a competent body.
FACTS:
On Sept. 6, 2001, President Arroyo renewed once again the (4) LIS MOTA - the lis mota of this case is the very
On Feb. 2, 1999, the COMELEC en banc appointed Angelina appointments of Benipayo, Borra and Tuason. constitutional issue raised by petitioner: constitutionality of
Matibag as “Acting Director IV” of the EID. On 2000, Benipayo’s appointment and assumption of office. In
Chairperson Demetriou renewed the appointment of ISSUE: addition, the issue is of paramount importance to the
petitioner in a “Temporary” capacity. On 2001, public.
Commissioner Javier renewed again the same also in a 1. WON the petition satisfies the requirements of
temporary capacity. judicial review. 2. The Nature of an Ad Interim Appointment
2. WON the appointments amounts to a temporary
March 22, 2001, President Arroyo appointed Benipayo as appointment prohibited by Sec. 1(2), Article IX-C Petitioner argues that an ad interim appointment to the
Chairman, and Borra and Tuason as COMELEC of CONST. COMELEC is a temporary appointment that is prohibited by
Commissioners, each for a term of seven years and all 3. WON the renewal of the appointments and Sec. 1(2), Article IX-C of the Constitution. The argument is
expiring on Feb. 2, 2008. The Commission on Appointments subsequent assumption of office violate the without merit.
did not act on said appointments. On June 1, 2001, said prohibition of reappointment.
appointments were renewed by President Arroyo. 4. WON Benipayo’s removal of Matibag and her An ad interim appointment is a permanent appointment
Benipayo, Borra and Tuason took their oaths of office for a reassignment is illegal and without authority, because it takes effect immediately and can no longer be
second time. Congress adjourned before the Commission having been done without the approval of the withdrawn by the President once the appointee has
on Appointments could act on said appointments. Thus, on COMELEC. qualified into office. The fact that it is subject to
June 8, President Arroyo renewed again the appointments 5. WON the OIC of COMELEC’s finance services dept confirmation by the Commission on Appointments does not
of Benipayo, Borra and Tuason. They took their oaths anew. in continuing to make disbarments is acting in alter its permanent character. The Constitution itself makes
excess of jurisdiction. an ad interim appointment permanent in character by
In his capacity as COMELEC Chairman, Benipayo designated RULING: making it effective until disapproved by the Commission on
Cinco as OIC of the EID and reassigning Matibag to the Law Appointments or until the next adjournment of Congress.
Department. COMELEC EID Commissioner-in-Charge Mehol 1. Propriety of Judicial Review The Constitution imposes no condition on the effectivity of
Sadain objected to such reassignment in a Memorandum an ad interim appointment, and thus an ad interim
addressed to the COMELEC for failure of Benipayo to The Court is not persuaded with the argument of the appointment takes effect immediately.
consult the Commissioner-in-Charge of the EID in the respondents that the petitioner lacks requisite 2, 3 and 4,
reassignment of Matibag. for the court to exercise Judicial Review. Appointment requiring confirmation by the CoA when
Congress is in session – the president nominates and only
Matibag requested a reconsideration from Benipayo, (2) LEGAL STANDING - Benipayo anchors the legality of the upon the consent of the Commission on Appointments may
reminding the latter that CSC MC no. 7 provides that petitioner’s reassignment on his authority as Chairman of the person thus named assume office.
transfer and detail of employees are prohibited during the the COMELEC. Petitioner’s personal and substantial injury,
election period beginning Jan, 2 until June 13, 2001. if Benipayo is not the lawful COMELEC Chairman, clothes Appointment when Congress is not in session – takes effect
Benipayo denied, citing COMELEC Resolution 3300 where it her with the requisite locus standi to raise the constitutional at once. The appointment is effective until disapproval by
was resolved to appoint, hire new employees or fill new issue in this petition. the Commission on Appointments or until the next
positions and transfer or reassign its personnel, when adjournment of the Congress.
(3) EARLIEST OPPORTUNITY- Petitioner filed the instant
necessary in the effective performance of its functions
petition only on August 3, 2001, when the first ad interim Ad interim – in the meantime; for the time being; an officer
during the prohibited period.
appointments were issued as early as March 22, 2001. ad interim is one appointed to fill a vacancy, or to discharge
Petitioner appealed to the COMELEC, filed an However, it is not the date of filing of the petition that the duties of the office during the absence or temporary
administrative and criminal complaint against Benipayo, determines whether the constitutional issue was raised at incapacity of its regular incumbent. Term is not descriptive
and while the complaint is pending, filed the instant the earliest opportunity. The earliest opportunity to raise a of the nature of the appointments given to him. Rather, it is
petition questioning the appointment and right to remain constitutional issue is to raise it in the pleadings before a used to denote the manner in which said appointments
competent court that can resolve the same, such that, “if it were made.
Ad interim appointment – permanent appointment made disapproval thereof allegedly inferred from said omission of Petitioner argues that only the COMELEC, acting as a
by the president in the meantime that Congress is in recess. the Commission, but the circumstance that upon said collegial body, can authorize such reassignment.
An ad interim appointment becomes complete and adjournment of the Congress, the President is free to make Petitioner’s posturing will hold water if Benipayo does not
irrevocable once the appointee has qualified into office. ad interim appointments or Reappointments. possess any color of title to the office of Chairman of the
Once an appointee has qualified, he acquires a legal right to COMELEC. We have ruled, however, that Benipayo is the de
the office which is protected not only by statute but also by A by-passed ad interim appointment can be revived by a jure COMELEC Chairman, and consequently he has full
the Constitution. He can only be removed for two just new ad interim appointment because there is no final authority to exercise all the powers of that office for so long
causes (1) disapproval of his appointment by CoA; (2) disapproval under Section 16, Article VII of the Constitution, as his ad interim appointment remains effective.
adjournment of Congress without the CoA acting on his and such new appointment will not result in the appointee
appointment. serving beyond the fixed term of seven years. The Chairman, as the Chief Executive of the COMELEC, is
expressly empowered on his own authority to transfer or
However, a temporary or acting appointee does not enjoy Four situations where the prohibition on reappointment reassign COMELEC personnel in accordance with the Civil
any security of tenure, no matter how briefly. This is the applies: Service Law. Petitioner is not a Career Executive Service
kind of appointment that the Constitution prohibits the (CES) officer, and neither does she hold Career Executive
1. Appointee after confirmation by the CoA, serves
president from making to the 3 independent constitutional Service Eligibility, which are necessary qualifications for
his full seven-year term.
commissions. The ad interim appointments of Benipayo, holding the position of Director IV as prescribed in the
2. Appointee after confirmation serves a part of his
Borra and Tuason are expressly allowed by the Constitution Qualifications Standards (Revised 1987) issued by the Civil
term and then resigns before his seven-year term
which authorizes the President, during the recess of Service Commission. Petitioner does not enjoy security of
of office ends.
Congress, to make appointments that take effect tenure as Director IV. The mere fact that a position belongs
3. Appointee is confirmed to serve the unexpired
immediately. to the Career Service does not automatically confer security
term of someone who died or resigned, and the
of tenure on its occupant even if he does not possess the
The purpose of ad interim appointments was for the appointee completes the unexpired term.
required qualifications. Such right will have to depend on
purpose of avoiding interruptions in vital government 4. Appointee has previously served a term of less
the nature of his appointment, which in turn depends on his
services that otherwise would result from prolonged than seven years, and a vacancy arises from death
eligibility or lack of it. Having been appointed merely in a
vacancies in government offices, including the three or resignation. Even if it will not result in his
temporary or acting capacity, and not possessed of the
constitutional commissions. serving more than seven years, a reappointment
necessary qualifications to hold the position of Director IV,
of such person to serve an unexpired term is also
petitioner has no legal basis in claiming that her
3. The Constitutionality of Renewals of Appointments prohibited.
reassignment was contrary to the Civil Service Law.
There is no dispute that an ad interim appointee None of these four situations applies to the case of The proviso in COMELEC Resolution No. 3300, requiring due
disapproved by the Commission on Appointments can no Benipayo, Borra or Tuason. notice and hearing before any transfer or reassignment can
longer be extended a new appointment. An ad interim
be made within thirty days prior to election day, refers only
appointment that is by-passed because of lack of time or It does not matter if the person previously appointed
to COMELEC field personnel and not to head office
failure of the Commission on Appointments to organize is completes his term of office for the intention is to prohibit
personnel like the petitioner. Under the Revised
another matter. A by-passed appointment is one that has any reappointment of any kind. However, an ad interm
Administrative Code, the COMELEC Chairman is the sole
not been finally acted upon on the merits by the appointment that has lapsed by inaction of the CoA does
officer specifically vested with the power to transfer or
Commission on Appointments at the close of the session of not constitute a term of office. The period from the time the
reassign COMELEC personnel. COMELEC Resolution No.
Congress. Absent the decision by the CoA to give or ad interim appointment is made to the time it lapses is
3300 does not require that every transfer or reassignment
withhold its consent to the appointment, the President is neither a fixed term nor an unexpired term. There must be
of COMELEC personnel should carry the concurrence of the
free to renew the ad interim appointment of a by-passed a confirmation by the CoA of the previous appointment
COMELEC as a collegial body.
appointee. before the prohibition on reappointment can apply.
The person holding that office, in a de jure capacity, is
Under the rules of the CoA, a bypassed appointment can be The ad interim appointments and subsequent renewals of
Benipayo. The COMELEC en banc, in COMELEC Resolution
considered again if the President renews the appointment. appointments of Benipayo, Borra and Tuason do not violate
No. 3300, approved the transfer or reassignment of
If the adjournment of Congress were an implied disapproval the prohibition on reappointments because there were no
COMELEC personnel during the election period. Thus,
of ad interim appointments made prior thereto, then the previous appointments that were confirmed by the
BenipayoÊs order reassigning petitioner does not violate
President could no longer appoint those so by-passed by Commission on Appointments.
Section 261 of the Omnibus Election Code.
the Commission. But, the fact is that the President may
reappoint them, thus clearly indicating that the reason for Respondent Benipayo’s Authority to Reassign Petitioner
5. OIC did not act in excess of jurisdiction. PETITION IS
said termination of the ad interim appointments is not the DISMISSED FOR LACK OF MERIT.