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 OFF…

Matibag versus Benipayo

The Case

This is an original petition for prohibition with a prayer for a writ of preliminary injunction and a temporary restraining order, brought directly before the Supreme Court under Rule 65 of the 1997 Rules of Civil Procedure. The petitioner, Ma. J. Angelina G. Matibag, an Acting Director of the Commission on Elections, asks the Court to declare unconstitutional the ad interim appointments of Alfredo L. Benipayo as Chairman, and of Resurreccion Z. Borra and Florentino A. Tuason, Jr. as Commissioners, of the Commission on Elections, and to restrain them from holding office. She also assails her own relief as Director of the Education and Information Department and her reassignment to the Law Department, the designation of Velma J. Cinco as Officer-in-Charge of that department, and the disbursements of salaries and emoluments to the appointees. The case matters because it fixes, for all three constitutional commissions, the legal nature of an ad interim appointment, and because it shows how the Court treats the requisites of judicial review when a constitutional question is entangled with an ordinary reassignment.

Procedural History

There were no lower court rulings to review. The petitioner first sought reconsideration from the Chairman, who denied it, and then appealed the denial to the Commission on Elections sitting en banc. While her administrative and criminal complaint against the Chairman was pending before the Law Department, she filed this petition directly with the Supreme Court as an original action for prohibition. The Court thus exercised its original jurisdiction over a constitutional challenge to the appointments and over the legality of the reassignment and the disbursements.

Facts

On February 2, 1999, the Commission on Elections en banc appointed the petitioner as Acting Director IV of the Education and Information Department. Her appointment was renewed in a temporary capacity on February 15, 2000, and again on February 15, 2001.

On March 22, 2001, President Gloria Macapagal Arroyo issued ad interim appointments to Benipayo as Chairman, and to Borra and Tuason as Commissioners, each for a term of seven years expiring on February 2, 2008. They took their oaths and assumed office. Their appointments were sent to the Commission on Appointments, which did not act. The President renewed the same ad interim appointments on June 1, 2001, and again on June 8, 2001, after Congress adjourned without confirmation, and each time the appointees took their oaths anew. A further renewal followed on September 6, 2001.

Meanwhile, on April 11, 2001, Benipayo issued a memorandum designating Cinco as Officer-in-Charge of the Education and Information Department and reassigning the petitioner to the Law Department. The Commissioner-in-Charge of that department objected that he had not been consulted. The petitioner asked for reconsideration, invoking a Civil Service Commission circular prohibiting transfers during the election period. Benipayo denied the request, citing a Commission resolution allowing transfers when necessary. The petitioner then filed this petition, and the Finance Services Department continued paying the appointees their salaries and emoluments.

Issues

• Whether or not the petition satisfies all the requisites before the Court may exercise its power of judicial review in constitutional cases.
• Whether or not the assumption of office by Benipayo, Borra and Tuason on the basis of ad interim appointments amounts to a temporary appointment prohibited by Section 1, paragraph 2, of Article IX-C of the Constitution.
• Whether or not the renewal of their ad interim appointments and their subsequent assumption of office violate the prohibition on reappointment under the same provision.
• Whether or not the removal of the petitioner from her position as Director IV and her reassignment to the Law Department, done without the approval of the Commission as a collegial body, is illegal and without authority.
• Whether or not the Officer-in-Charge of the Finance Services Department acted in excess of jurisdiction in continuing to make disbursements in favor of the appointees.

Applicable Provisions

Section 1, paragraph 2, of Article IX-C of the Constitution provides:

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.

This is the provision the petitioner invokes against the ad interim appointments, and the Court construes its last sentence.

The second paragraph of Section 16, Article VII of the Constitution provides:

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.

This is the provision that makes an ad interim appointment effective immediately and until disapproval or adjournment, and it anchors the Court's holding that such an appointment is permanent.

Ruling

On the first issue, the Court held that all the requisites of judicial review are present. The petitioner has a personal and substantial stake, because the legality of her reassignment rests on whether Benipayo is the lawful Chairman, and her injury clothes her with standing. The constitutional question was raised at the earliest opportunity, since the earliest opportunity means the first pleading before a competent court, and the Court may in its discretion determine when a constitutional issue may be passed upon. The constitutional issue is the very lis mota, the threshold issue, because the reassignment cannot be resolved without it. The Court added that the issue is of paramount public importance, touching the validity of the directives made for the May 2001 national elections.

On the second issue, the Court held that an ad interim appointment is not a temporary appointment. It is permanent because it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. The Court quoted its earlier ruling that an ad interim appointment is permanent in nature, and that the circumstance that it is subject to confirmation does not alter its permanent character. It distinguished a temporary or acting appointment, which can be withdrawn at the pleasure of the appointing power and enjoys no security of tenure, and which is the kind of appointment the Constitution prohibits.

On the third issue, the Court held that the renewals did not violate the prohibition on reappointment. The appointees were extended only one ad interim appointment each, renewed while confirmation was pending, and the renewals did not amount to a second appointment to the same office.

On the fourth issue, the Court held that the reassignment is legal, since it was made by a lawful Chairman and no cause was shown that it violated the Civil Service Law.

On the fifth issue, the Court held that the disbursements were valid, because the appointees were de jure officers entitled to their salaries and emoluments.

Doctrine

An ad interim appointment is a permanent appointment. It takes effect immediately, the appointee may qualify and assume office at once as a de jure officer, and it cannot be withdrawn or revoked by the President after qualification. It is terminated only by disapproval by the Commission on Appointments or by the next adjournment of Congress without action, which are resolutory conditions imposed by the Constitution itself. The term ad interim describes the manner of the appointment, made while Congress is in recess, not its temporary character. The constitutional prohibition is directed only at appointments or designations in a temporary or acting capacity, which are revocable at will and carry no security of tenure. For judicial review, the earliest opportunity to raise a constitutional issue means the first pleading before a competent court, and the Court may brush aside technicalities where public interest requires resolution.

Disposition

The Court dismissed the petition and upheld the ad interim appointments of Benipayo, Borra and Tuason, the reassignment of the petitioner, the designation of Cinco, and the disbursements made to them.

Remember This

Memorize the line: an ad interim appointment is permanent, effective immediately, and irrevocable once the appointee qualifies, terminated only by disapproval or adjournment. Examiners use this case to test the distinction between an ad interim appointment and a prohibited temporary or acting appointment under Article IX-C, and the requisites of judicial review.