Ad Interim and Regular Appointments

Steps for Regular Appointments

The usual steps in the appointing process are:

1. the nomination, which is made by the President;

2. the confirmation, which is a prerogative of the Commission on
Appointments; and
3. the issuance of the commission, also done by the President.

For Ad Interim

In ad interim appointment, the appointment comes before the

confirmation, which is made by the Commission when it reconvenes
following the legislative recess. The nomination of the regular
appointee is made and approved during the session, when the Commission
on Appointments is authorized to meet.

But the ad interim appointment is made during the recess and becomes
effective then, subject to confirmation or rejection later, during the
next legislative session.

Distinction

The distinction between the regular and ad interim appointments are the
following:

(1) The regular appointment is made during the the legislative session;
the ad interim appointment is made during the recess. (2) The regular
appointment is made only after the nomination is confirmed by the
Commission on Appointments; the ad interim appointment is made before
such confirmation. (3) The regular appointment, once confirmed by the
Commission on Appointments, continues until the end of the term of the
appointee; the ad interim appointment shall cease to be valid if
disapproved by the Commission on Appointments or upon the next
adjournment of the Congress. In the latter case, the appointment is
deemed "by-passed" through inaction of, and so disapproved impliedly by
the Commission on Appointments.
The phrase "until the next adjournment of the Congress" in the second
paragraph of Section 16 of Article VII refers to the termination of the
next regular or special session of the Congress. "Consequently, it is
safe to conclude that the framers of the Constitution in employing
merely the word adjournment as a mode of terminating an appointment made
during the recess of Congress had in mind either the regular or special
session, and not simply the regular one as contended by the petitioner."
[1]

Is Ad Interim appointment permanent in 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effect immediately and can no longer be withdrawn by the President once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.

In fine, we(the Court) rule that the ad interim appointments extended by

the President to Benipayo, Borra and Tusaon, as COMELEC Chairman and
Commissioners, respectively, do not constitute termporary or acting
appointments prohibited by Section 1(2), Article IX-C of the
[2]
Constitution.

While we characterized an ad interim appointment in Matibag v. Benipayo

"as a permanent appointment that takes effect immediately and can no
longer be withdrawn by the President once the appointee has qualified
into office," we have also positively ruled in that case that "ad
interim appointment that has lapsed by inaction of the Commission on
Appointments does not constitute a term of office." xxx The period from
the time the ad interim appointment is made to the time it lapses is
[3]
neither a fixed term nor an unexpired term.

BAR QUESTION

(Below was one of Mock Bar Exam questions held by USJR School of Law
through Examplify on May 8, 2021)
In March 2001, while Congress was adjourned, the President appointed
Atty. Lopez as Chairman of the Commission on Elections. Atty. Lopez
immediately took his oath and assumed office. While his appointment was
promptly submitted to the Commission on Appointments for confirmation,
it was not acted upon and Congress again adjourned. In June 2001, the
President extended a second ad interim appointment to Atty. Lopez for
the same position with the same term, and the appointment was again
submitted to the Commission on Appointments for confirmation. Atty.
Lopez took his oath anew and performed the functions of his office.
Atty. Gina, a political rival, filed a suit assailing certain orders
issued by Atty. Lopez. He also questioned the validity of his
appointment. Resolve the following issues: a) Does Atty. Lopezs
assumption of office on the basis of the ad interim appointment issued
by the President amount to a temporary appointment which is prohibited
by Section 1 (2), Article IX-C of the Constitution? (3%) b) Assuming the
legality of the first ad interim appointment and assumption of office by
Atty. Lopez, were his second ad interim appointment and subsequent
assumption of office to the same position a violation of the prohibition
on reappointment under Section 1 (2), Article IX-C of the Constitution?
(3%) #BARQ

MY ANSWER:

a. No, the appointment of Atty. Lopez as Chairman of the Commission of

Elections is valid and is not a prohibition under the Constitution. Ad
interim appointment is permanent in character and can only be replaced
or removed in the next adjournment of Congress. It cannot be withdrawn
by the President once the appointee was qualified into office. If there
are inaction by the Commission on Appointments, the appointment is
considered not a term of office nor it is a fixed term or an unexpired
term.

b. No, there was no violation of the prohibition on reappointment. Ad

interim appointment is neither a fixed term or unexpired term held by
the appointee. The appointment of Atty. Lopez for the next adjournment
of Congress was valid because such appointment was made during recess
and not during session of the Congress. #BARA

1. Guevara v. Inocentes, G.R. No. L-25577, March 15, 1966, 18 SCRA 379 ↩
2. Matibag v. Benipayo, G.R. No. 149036, April 2, 2002 ↩
3. Fetalino v. Commission on Elections, G.R. No. 191890, December 4, 2012 ↩