The official, a lawyer at the Comelec, noted that the "ad interim" appointment of Benipayo and Commissioners Resurreccion Borra and Florentino Tuason border on violations of two Constitutional provisions that prohibit reappointment.
Benipayo, Borra and Tuason were appointed by President Arroyo on Feb. 2 on an "an interim basis."
The Comelec lawyer, who asked for anonymity, said Article 7, Section 16 of the Constitution said Malacañang is not allowed to make ad interim appointments to Constitutional bodies, such as the Comelec.
"President Arroyo appointed Benipayo, Tuason, and Borra to fill the three vancies at the Comelec. However, the Comelec, like the Supreme Court, is a collegial body. A vacancy does not stop it from fuctioning," the lawyer said.
Although the law considers ad interim appointment as permanent in nature, it can still be revoked by the President or by Congress, the lawyer said.
"This is the reason why the Constitution denies ad interim appointments to Constitutional bodies such as the Comelec and the Supreme Court so that these bodies do not become subservient to the President or members of Congress," the lawyer said.
The official said other lawyers at the Comelec were aware of this problem since the appointment of Benipayo, Tuason, and Borra.
But recently, lawyer Ma. Angelina Matibag, former chief of the Comelec Education and Information Department (EID), raised the matter before the Supreme Court.
"Many lawyers here at the Comelec, and even known election lawyers were mum over this problem. But now that the matter was raised by Atty. Matibag before the Supreme Court, there is this real possibility that the appointment of Benipayo could be void from the start," the official said.
The source added," what if their appointments were void ab initio (from the start), would this mean that all of the resolutions the three promulgated be nullified too? Among them the proclamation of all elected officials in the May 14 elections?"
The official also cited another possible constitutional violation, when the three face the Commission on Appointments (CA).
The official said since ad interim is a cross between permanent and temporary appointment, "should their confirmation mean that they are being reappointed?"
The official said Article 9, Section 1 of the Constitution do now allow reappointment at the Comelec.
"If we consider that the first ad interim appointment is permanent and not temporary in character, the reappointment of an appointee, after having been bypassed by the CA violates the Constitution," the lawyer said. – Sandy Araneta