EN BANC

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

MA. J. ANGELINA G. MATIBAG, petitioner, vs. ALFREDO L. BENIPAYO,

RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR.,
VELMA J. CINCO, and GIDEON C. DE GUZMAN in his capacity as
Officer-In-Charge, Finance Services Department of the Commission on
Elections, respondents.

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 the ad interim appointments issued by the President to
Benipayo, Borra and Tuason unless all the four requisites are present. These are: (1) the
existence of an actual and appropriate controversy; (2) a personal and substantial interest of the
party raising the constitutional issue; (3) the exercise of the judicial review is pleaded at the
earliest opportunity; and (4) the constitutional issue is the lis mota of the case.[19]
Respondents argue that the second, third and fourth requisites are absent in this
case. Respondents maintain that petitioner does not have a personal and substantial interest in the
case because she has not sustained a direct injury as a result of the ad interim appointments of
Benipayo, Borra and Tuason and their assumption of office. Respondents point out that
petitioner does not claim to be lawfully entitled to any of the positions assumed by Benipayo,
Borra or Tuason. Neither does petitioner claim to be directly injured by the appointments of
these three respondents.
Respondents also contend that petitioner failed to question the constitutionality of the ad
interim appointments at the earliest opportunity. Petitioner filed the petition only on August 3,
2001 despite the fact that the ad interim appointments of Benipayo, Borra and Tuason were
issued as early as March 22, 2001. Moreover, the petition was filed after the third time that these
three respondents were issued ad interim appointments.
Respondents insist that the real issue in this case is the legality of 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.[24] Here the petitioner has complied with all the requisite technicalities. Moreover,
public interest requires the resolution of the constitutional issue raised by petitioner.

Second Issue: The Nature of an Ad Interim Appointment

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

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

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

Petitioner posits the view that an ad interim appointment can be withdrawn or revoked by the
President at her pleasure, and can even be disapproved or simply by-passed by the Commission
on Appointments. For this reason, petitioner claims that an ad interimappointment is temporary
in character and consequently prohibited by the last sentence of Section 1 (2), Article IX-C 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 interimappointment 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 an ad interim appointment is
undoubtedly temporary in character. This argument is not new and was answered by this Court
in Pamantasan ng Lungsod ng Maynila vs. Intermediate Appellate Court,[27] where we explained
that:

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 an ad interim appointment in the more recent case of Marohombsar vs. Court of
Appeals,[28] where the Court stated:

We have already mentioned that an ad interim appointment is not descriptive of the

nature of the appointment, that is, it is not indicative of whether the appointment is
temporary or in an acting capacity, rather it denotes the manner in which the
appointment was made. In the instant case, the appointment extended to private
respondent by then MSU President Alonto, Jr. was issued without condition nor
limitation as to tenure. The permanent status of private 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, an ad interim appointment becomes complete and irrevocable
once the appointee has qualified into office. The withdrawal or revocation of an ad
interim appointment is possible only if it is communicated to the appointee before the moment he
qualifies, and any withdrawal or revocation thereafter is tantamount to removal from
office.[30] Once an appointee has qualified, he acquires a legal right to the office which is
protected not only by statute but also by the Constitution. He can only be removed for cause,
after notice and hearing, consistent with the requirements of due process.
An ad interim appointment can be terminated for two causes specified in the Constitution.
The first cause is the disapproval of his ad interim appointment by the Commission on
Appointments. The second cause is the adjournment of Congress without the Commission on
Appointments acting on his appointment. These two causes are resolutory conditions expressly
imposed by the Constitution on all ad interim appointments. These resolutory conditions
constitute, in effect, a Sword of Damocles over the heads of ad interim appointees.No one,
however, can complain because it is the Constitution itself that places the Sword of Damocles
over the heads of the ad interim appointees.
While an ad interim appointment is permanent and irrevocable except as provided by law,
an appointment or designation in a temporary or acting capacity can be withdrawn or revoked at
the pleasure of the appointing power.[31] A temporary or acting appointee does not enjoy any
security of tenure, no matter how briefly. This is the kind of appointment that the Constitution
prohibits the President from making to the three independent constitutional commissions,
including the COMELEC. Thus, in Brillantes vs. Yorac,[32] this Court struck down
as unconstitutional the designation by then President Corazon Aquino of Associate
Commissioner Haydee Yorac as Acting Chairperson of the COMELEC. This Court ruled that:
 A designation as Acting Chairman is by its very terms essentially temporary
and therefore revocable at will. No cause need be established to justify its
revocation. Assuming its validity, the designation of the respondent as Acting
Chairman of the Commission on Elections may be withdrawn by the
President of the Philippines at any time and for whatever reason she sees
fit. It is doubtful if the respondent, having accepted such designation, will not
be estopped from challenging its withdrawal.

xxx

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 interim appointments? 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
interim appointments in this manner:

Now, why is the lifetime of ad interim appointments so limited? Because, if they

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

Indeed, the timely application of the last sentence of Section 16, Article VII of the
Constitution barely avoided the interruption of essential government services in the May 2001
national elections. Following the decision of this Court in Gaminde vs. Commission on
Appointments,[39] promulgated on December 13, 2000, the terms of office of constitutional
officers first appointed under the Constitution would have to be counted starting February 2,
1987, the date of ratification of the Constitution, regardless of the date of their actual
appointment. By this reckoning, the terms of office of three Commissioners of the COMELEC,
including the Chairman, would end on February 2, 2001.[40]
Then COMELEC Chairperson Harriet O. Demetriou was appointed only on January 11,
2000 to serve, pursuant to her appointment papers, until February 15, 2002,[41] the original expiry
date of the term of her predecessor, Justice Bernardo P. Pardo, who was elevated to this
Court. The original expiry date of the term of Commissioner Teresita Dy-Liacco Flores was also
February 15, 2002, while that of Commissioner Julio F. Desamito was November 3, 2001. [42] The
original expiry dates of the terms of office of Chairperson Demetriou and Commissioners Flores
and Desamito were therefore supposed to fall after the May 2001 elections. Suddenly and
unexpectedly, because of the Gaminde ruling, there were three vacancies in the seven-person
COMELEC, with national elections looming less than three and one-half months away. To their
credit, Chairperson Demetriou and Commissioner Flores vacated their offices on February 2,
2001 and did not question any more before this Court the applicability of the Gaminde ruling to
their own situation.
In a Manifestation[43] dated December 28, 2000 filed with this Court in the Gaminde case,
Chairperson Demetriou stated that she was vacating her office on February 2, 2001, as she
believed any delay in choosing her successor might create a constitutional crisis in view of the
proximity of the May 2001 national elections. Commissioner Desamito chose to file a petition
for intervention[44] in the Gaminde case but this Court denied the intervention. Thus,
Commissioner Desamito also vacated his office on February 2, 2001.
During an election year, Congress normally goes on voluntary recess between February and
June considering that many of the members of the House of Representatives and the Senate run
for re-election. In 2001, the Eleventh Congress adjourned from January 9, 2001 to June 3,
2001.[45] Concededly, there was no more time for Benipayo, Borra and Tuason, who were
originally extended ad interim appointments only on March 22, 2001, to be confirmed by the
Commission on Appointments before the May 14, 2001 elections.
If Benipayo, Borra and Tuason were not extended ad interim appointments to fill up the
three vacancies in the COMELEC, there would only have been one division functioning in the
COMELEC instead of two during the May 2001 elections. Considering that the Constitution
requires that all 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 interim appointment to Commissioner
Alfredo E. Abueg.[47] Former President Fidel V. Ramos extended ad interimappointments to
Commissioners Julio F. Desamito, Japal M. Guiani, Graduacion A. Reyes-Claravall and Manolo
F. Gorospe.[48] Former President Joseph Estrada also extended ad interim appointments to
Commissioners Abdul Gani M. Marohombsar, Luzviminda Tancangco, Mehol K. Sadain and
Ralph C. Lantion.[49]
The 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 interim appointments was
lifted verbatim.[54] The jurisprudence under the 1935 Constitution governing ad
interimappointments by the President is doubtless applicable to the present Constitution. The
established practice under the present Constitution is that the President can renew the
appointments of by-passed ad interim appointees. This is a continuation of the well-recognized
practice under the 1935 Constitution, interrupted only by the 1973 Constitution which did not
provide for a Commission on Appointments but vested sole appointing power in the President.
The prohibition on reappointment in Section 1 (2), Article IX-C of the Constitution applies
neither to disapproved nor by-passed ad interim appointments. A disapproved ad
interim appointment cannot be revived by another ad interim appointment because the
disapproval is final under Section 16, Article VII of the Constitution, and not because a
reappointment is prohibited under Section 1 (2), Article IX-C of the Constitution. A by-
passed ad interim appointment can be revived by a new ad interim appointment because there is
no final disapproval under Section 16, Article VII of the Constitution, and such new appointment
will not result in the appointee serving beyond the fixed term of seven years.
Section 1 (2), Article IX-C of the Constitution provides that [t]he Chairman and the
Commissioners shall be appointed 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 interim appointments, a power intended to avoid disruptions in vital
government services. This Court cannot subscribe to a proposition that will wreak havoc on vital
government services.
 The prohibition on reappointment is common to the three constitutional commissions. The
framers of the present Constitution prohibited reappointments for two reasons. The first is to
prevent a second appointment for those who have been previously appointed and confirmed even
if they served for less than seven years. The second is to insure that the members of the three
constitutional commissions do not serve beyond the fixed term of seven years. As reported in
the Journal of the Constitutional Commission, Commissioner Vicente B. Foz, who
sponsored[58]the proposed articles on the three constitutional commissions, outlined the four
important features of the proposed articles, to wit:

Mr. Foz stated that the Committee had introduced basic changes in the
common provision affecting the three Constitutional Commissions, and which
are: 1) fiscal autonomy which provides (that) appropriations shall be
automatically and regularly released to the Commission in the same manner
(as) provided for the Judiciary; 2) fixed term of office without
reappointment on a staggered basis to ensure continuity of functions and to
minimize the opportunity of the President to appoint all the members during
his incumbency; 3) prohibition to decrease salaries of the members of the
Commissions during their term of office; and 4) appointments of members
would not require confirmation.[59] (Emphasis supplied)

There were two important amendments subsequently made by the Constitutional

Commission to these four features. First, as discussed earlier, the framers of the Constitution
decided to require confirmation by the Commission on Appointments of all appointments to the
constitutional commissions. Second, the framers decided to strengthen further the prohibition on
serving beyond the fixed seven-year term, in the light of a former chair of the Commission on
Audit remaining in office for 12 years despite his fixed term of seven years. The following
exchange in the deliberations of the Constitutional Commission is instructive:

MR. SUAREZ: These are only clarificatory questions, Madam President. May
I call the 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. In Secretary of Justice Serafin Cuevas vs. Atty. Josefina G. Bacal,[66] this Court held that:

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

It is settled that a permanent appointment can be issued only to a person who meets
all the requirements for the position to which he is being appointed, including the
appropriate eligibility prescribed. Achacoso did not. At best, therefore, his
appointment could be regarded only as temporary. And being so, it could be
withdrawn at will by the appointing authority and at a 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 jure capacity, is Benipayo. The
COMELEC en banc, in COMELEC Resolution No. 3300, approved the transfer or reassignment
of COMELEC personnel during the election period. Thus, 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.
Davide, Jr., C.J., Bellosillo, Melo, Kapunan, Mendoza, Panganiban, Quisumbing, Ynares-
Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur.
Puno, and Vitug, JJ., on official leave.