Dimaporo vs. Mitra, Jr.

(1991)
G.R. No. 96859 | 1991-10-15
Ponente: DAVIDE, JR., J.

Subject: Section 67, Article IX of B.P. Blg. 881 remains valid and operative under the present 1987 Constitution; Term vs.
Tenure of office; The modes of shortening the tenure of elective officials under the Constitution are not exclusive; Filing a
certificate of candidacy for another office considered an act of voluntary renunciation of the current office; Administrative
act of striking Dimaporo's name in the roll of House of Representatives members was proper

Facts:

In 1990, petitioner Mohamad Ali Dimaporo, while serving as Representative for the Second Legislative District of Lanao
del Sur, filed with the Commission on Elections (COMELEC) a Certificate of Candidacy for the position of Regional
Governor of the Autonomous Region in Muslim Mindanao (ARMM).

Conseqently, the Speaker and Secretary of the House of Representatives, Ramon Mitra, Jr. excluded petitioner's name
from the Roll of Members of the House of Representatives pursuant to Section 67, Article IX of the Omnibus Election
Code (B.P. Blg. 881), which states that:

“Any elective official whether national or local running for any office other than the one which he is holding in a permanent
capacity except for President and Vice-President shall be considered ipso facto resigned from his office upon the filing of
his certificate of candidacy.”

Having lost in the autonomous region elections, petitioner sent a letter addressed to respondent Speaker Mitra,
expressing his intention "to resume performing my duties and functions as elected Member of Congress."

Having failed in his bid to regain his seat in Congress, petitioner Dimaporo filed the present petition. Dimaporo argues that
under the present 1987 Constitution, the are specific and limited instances where the term of a legislative member may be
shortened. Section 67, Article IX of B.P. Blg. 881 is repugnant to the present Constitution in that it provides for the
shortening of a congressman's term of office on a ground not provided for in the Constitution. Moreover, he claims that he
cannot be said to have forfeited his seat as it is only when a congressman holds another office or employment that
forfeiture is decreed.
On the other hand, the Office of the Solicitor General contend that Section 67, Article IX of B.P. Blg. 881 is still operative
under the present Constitution, as the act contemplated in said Section 67 falls within the term 'voluntary renunciation" of
office enunciated in par. 2, Section 7, Article VI of the Constitution. That the ground provided in Section 67 is not included
in the Constitution does not affect its validity as the grounds mentioned therein are not exclusive.

Held:

Section 67, Article IX of B.P. Blg. 881 remains valid and operative under the present 1987 Constitution

1.  It must be noted that (in contrast to previous election codes which contain similar provisions), only in B.P. Blg. 881 are
members of the legislature included in the enumeration of elective public officials who are to be considered resigned from
office from the moment of the filing of their certificates of candidacy for another office, except for President and Vice-
President. The advocates of Cabinet Bill No. 2 (now Section 67, Article IX of B.P. Blg. 881), in providing for the rationale
of this inclusion, cited the the practice in the past where members of the legislature ran for local offices, but when they
won the local election, nevertheless choose to stay in the current national position.

2.  The same constitutional basis for Section 67, Article IX of B.P. Blg. 881 remains written in the 1987 Constitution. In
fact, Section 1 of Article XI on "Accountability of Public Officers" is more emphatic in stating:

"Sec. 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve
them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives."

3.  Petitioner's assumption that the questioned statutory provision is no longer operative does not hold water. He failed to
discern that rather than cut short the term of office of elective public officials, this statutory provision seeks to ensure that
such officials serve out their entire term of office by discouraging them from running for another public office and thereby
cutting short their tenure by making it clear that should they fail in their candidacy, they cannot go back to their former
position. This is consonant with the constitutional edict that all public officials must serve the people with utmost loyalty
and not trifle with the mandate which they have received from their constituents.

Term vs. Tenure of office

4.  In theorizing that the provision under consideration cuts short the term of office of a Member of Congress, petitioner
seems to confuse "term" with "tenure" of office.
5.  The term of office prescribed by the Constitution may not be extended or shortened by the legislature but the period
during which an officer actually holds the office (tenure), may be affected by circumstances within or beyond the power of
said officer. Tenure may be shorter than the term or it may not exist at all. These situations will not change the duration of
the term of office (see Topacio Nueno vs. Angeles

6.  Under the questioned provision, when an elective official covered thereby files a certificate of candidacy for another
office, he is deemed to have voluntarily cut short his tenure, not his term. The term remains and his successor, if any, is
allowed to serve its unexpired portion.

The modes of shortening the tenure of elective officials under the Constitution are not exclusive

7.  That the ground cited in Section 67, Article IX of B.P. Blg. 881 is not mentioned in the Constitution itself as a mode of
shortening the tenure of office of members of Congress, does not preclude its application to present members of
Congress. Section 2 of Article XI provides that "(t)he President, the Vice-President, the Members of the Supreme Court,
the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for,
and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or
betrayal of public trust.  All other public officers and employees may be removed from office as provided by law , but not by
impeachment. “ Such constitutional expression clearly recognizes that the four (4) grounds found in Article VI of the
Constitution by which the tenure of a Congressman may be shortened are not exclusive.

8.  As held in the case of State ex rel. Berge vs. Lansing, the expression in the constitution of the circumstances which
shall bring about a vacancy does not necessarily exclude all others. Neither does it preclude the legislature from
prescribing other grounds. 15 Events so enumerated in the constitution or statutes are merely conditions the occurrence
of any one of which the office shall become vacant 16 not as a penalty but simply as the legal effect of any one of the
events. And would it not be preposterous to say that a congressman cannot die and cut his tenure because death is not
one of the grounds provided for in the Constitution? The framers of our funds mental law never intended such absurdity.

9.  The maxim expression unius est exclusion alterius is not to be applied with the same rigor in construing a constitution
as a statute and only those things expressed in such positive affirmative terms as plainly imply the negative of what is not
mentioned will be considered as inhibiting the power of "legislature. The maxim is only a rule of interpretation and not a
constitutional command. 20 This maxim expresses a rule of construction and serves only as an aid in discovering
legislative intent where such intent is not otherwise manifest
10.  This Court has enunciated the presumption in favor of constitutionality of legislative enactment. To justify the
nullification of a law, there must be a clear and unequivocal breach of the Constitution, not a doubtful and argumentative
implication. A doubt, even if well-founded, does not suffice.

Filing a certificate of candidacy for another office considered an act of voluntary renunciation of the current office

11. Moreover, the concept of voluntary renunciation of office under Section 7, Article VI of the Constitution is broad
enough to include the situation envisioned in Section 67, Article IX of B.P. Blg. 881. The act contemplated in Section 67,
of filing a certificate of candidacy for another office constitutes an overt, concrete act of voluntary renunciation of the
elective office presently being held.

12.  The Court categorically pronounced that "forfeiture (is) automatic and permanently effective upon the filing of the
certificate of candidacy for another office. Only the moment and act of filing are considered. (see Monroy vs. Court of
Appeals)

13.  The wording of the law plainly indicates that only the date of filing of the certificate of candidacy should be taken into
account. The law does not make the forfeiture dependent upon future contingencies, unforeseen and unforeseeable,
since the vacating is expressly made as of the moment of the filing of the certificate of candidacy. Once the certificate is
filed, the seat is forever forfeited and nothing save a new election or appointment can restore the ousted official. (see
Castro vs. Gatuslao)

Administrative act of striking Dimaporo's name in the roll of House of Representatives members was proper

14.  The legal effects of filing a certificate of candidacy for another office having been spelled out in Section 67, Article IX,
B.P. Blg. 881 itself, no statutory interpretation was indulged in by respondents Speaker and Secretary of the House of
Representatives in excluding petitioner's name from the Roll of Members. The Speaker is the administrative head of the
House of Representatives and he exercises administrative powers and functions attached to his office. As administrative
officers, both the Speaker and House Secretary-General perform ministerial functions. It was their duty to remove
petitioner's name from the Roll considering the unequivocal tenor of Section 67, Article IX, B.P. Blg. 881. These officers
cannot refuse to perform their duty on the ground of an alleged invalidity of the statute imposing the duty. The reason for
this is obvious. It might seriously hinder the transaction of public business if these officers were to be permitted in all
cases to question the constitutionality of statutes and ordinances imposing duties upon them and which have not judicially
been declared unconstitutional. Officers of the government from the highest to the lowest are creatures of the law and are
bound to obey it.

NOTE: Pursuant to Section 14 of RA 9006 or the Fair Election Act, which repealed Section 67 of the Omnibus Election
Code, an elected official is not deemed to have resigned from his office upon the filing of his certificate of candidacy for
the same or any other elected office or position.
JUAN DOMINO, petitioner, vs. COMMISSION ON ELECTIONS, NARCISO Ra. GRAFILO, JR., EDDY B. JAVA, JUAN
P. BAYONITO, JR., ROSARIO SAMSON and DIONISIO P. LIM, SR., respondents. / LUCILLE CHIONGBIAN-SOLON,
intervenor.
G.R. No. 134015 | 1999-07-19
Ponente: DAVIDE, JR., C.J

Subject: Commission on Elections, Enforce Election Laws Inclusion and Exclusion of Votes (Voter) Proceedings Decision
on Inclusion/Exclusion of Votes (Voter) Proceedings are conclusive only on issue of right to vote — does not operate as
res judicata on other matters with respect to the COMELEC

Facts:

On 25 March 1998, DOMINO filed his certificate of candidacy for the position of Representative of the Lone Legislative
District of the Province of Sarangani indicating in item nine (9) of his certificate that he had resided in the constituency
where he seeks to be elected for one (1) year and two (2) months immediately preceding the election.

Private respondents, Narciso Grafilo, et.al., filed for the cancellation of Domino’s COC, alleging that the latter is not a
resident, much less a registered voter, of the province of Sarangani where he seeks election.

For Domino’s defense, maintains that he had complied with the one-year residence requirement and that he has been
residing in Sarangani since January 1997 and presented exhibits to support his claim.

On 6 May 1998, the COMELEC 2nd Division promulgated a resolution declaring DOMINO disqualified as candidate for
the position of representative of the lone district of Sarangani for lack of the one-year residence requirement and likewise
ordered the cancellation of his certificate of candidacy, on the basis of the following findings:

1. Domino’s previous in 24 Bonifacio St., Ayala Heights, Old Balara, Quezon City negates his claim that he established
residence at Brgy. Poblacion, Alabel, Sarangani, as early as January 1997. It is highly improbable, nay incredible, for
respondent who previously ran for the same position in the 3rd Legislative District of Quezon City during the elections of
1995 to unwittingly forget the residency requirement for the office sought.
2. Counting, therefore, from the day after June 22, 1997 when respondent registered at Precinct No. 4400-A, up to and
until the day of the elections on May 11, 1998, respondent clearly lacks the one (1) year residency requirement provided
for candidates for Member of the House of Representatives under Section 6, Article VI of the Constitution.

On 11 May 1998, the day of the election, the COMELEC issued Supplemental Omnibus Resolution No. 3046, ordering
that the votes cast for DOMINO be counted but to suspend the proclamation if winning, considering that the Resolution
disqualifying him as candidate had not yet become final and executory.

The result of the election, per Statement of Votes certified by the Chairman of the Provincial Board of Canvassers,[8]
shows that DOMINO garnered the highest number of votes over his opponents for the position of Congressman of the
Province of Sarangani.

On 15 May 1998, DOMINO filed a motion for reconsideration of the Resolution dated 6 May 1998, which was denied by
the COMELEC en banc in its decision dated 29 May 1998. Hence, the present Petition for Certiorari with prayer for
Preliminary Mandatory Injunction alleging, in the main, that the COMELEC committed grave abuse of discretion
amounting to excess or lack of jurisdiction when it ruled that he did not meet the one-year residence requirement.

On 15 September 1998, Lucille L. Chiongbian-Solon, (hereafter INTERVENOR), the candidate receiving the second
highest number of votes, was allowed by the Court to Intervene.

INTERVENOR in her Motion for Leave to Intervene and in her Comment in Intervention is asking the Court to uphold the
disqualification of petitioner Juan Domino and to proclaim her as the duly elected representative of Sarangani in the 11
May 1998 elections.

Issue:

a. Whether or not the judgment of the Metropolitan Trial Court of Quezon City declaring petitioner as resident of
Sarangani and not of Quezon City is final, conclusive and binding upon the whole world, including the Commission on
Elections.

b. Whether or not petitioner herein has resided in the subject congressional district for at least one (1) year immediately
preceding the May 11, 1998 elections; and
c. Whether or not respondent COMELEC has jurisdiction over the petition a quo for the disqualification of petitioner.

Held:

First issue, decision on inclusion/exclusion of votes (voter) proceedings are conclusive only on issue of the right to vote-
does not operate as res judicata on other matters with respect to the COMELEC.

Second issue, Domino is NOT a resident for at least one immediately preceding the 11 May 1998 election as stated in
his COC.

Records show that petitioner's domicile of origin was Candon, Ilocos Sur[24] and that sometime in 1991, he acquired a
new domicile of choice at 24 Bonifacio St. Ayala Heights, Old Balara, Quezon City, as shown by his certificate of
candidacy for the position of representative of the 3rd District of Quezon City in the May 1995 election. Petitioner is now
claiming that he had effectively abandoned his "residence" in Quezon City and has established a new "domicile" of choice
at the Province of Sarangani.

A person's "domicile" once established is considered to continue and will not be deemed lost until a new one is
established. To successfully effect a change of domicile one must demonstrate an actual removal or an actual change of
domicile; a bona fide intention of abandoning the former place of residence and establishing a new one and definite acts
which correspond with the purpose.[26] In other words, there must basically be animus manendi coupled with animus non
revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of
residence must be voluntary; and the residence at the place chosen for the new domicile must be actual.

While "residence" simply requires bodily presence in a given place, "domicile" requires not only such bodily presence in
that place but also a declared and probable intent to make it one's fixed and permanent place of abode, one's home.

As a general rule, the principal elements of domicile, physical presence in the locality involved and intention to adopt it as
a domicile, must concur in order to establish a new domicile. No change of domicile will result if either of these elements is
absent. Intention to acquire a domicile without actual residence in the locality does not result in acquisition of domicile, nor
does the fact of physical presence without intention.
The lease contract entered into sometime in January 1997, does not adequately support a change of domicile. The lease
contract may be indicative of DOMINO's intention to reside in Sarangani but it does not engender the kind of permanency
required to prove abandonment of one's original domicile. The mere absence of individual from his permanent residence,
no matter how long, without the intention to abandon it does not result in loss or change of domicile.
While, Domino's intention to establish residence in Sarangani can be gleaned from the fact that be bought the house he
was renting on November 4, 1997, that he sought cancellation of his previous registration in Quezon City on 22 October
1997, and that he applied for transfer of registration from Quezon City to Sarangani by reason of change of residence on
30 August 1997, DOMINO still falls short of the one year residency requirement under the Constitution.

In showing compliance with the residency requirement, both intent and actual presence in the district one intends to
represent must satisfy the length of time prescribed by the fundamental law. Domino's failure to do so rendered him
ineligible and his election to office null and void.

Third issue, DOMINO's contention that the COMELEC has no jurisdiction in the present petition is bereft of merit. It has
been repeatedly held in a number of cases, that the House of Representatives Electoral Tribunal's sole and exclusive
jurisdiction over all contests relating to the election, returns and qualifications of members of Congress as provided under
Section 17 of Article VI of the Constitution begins only after a candidate has become a member of the House of
Representatives.

The fact of obtaining the highest number of votes in an election does not automatically vest the position in the winning
candidate. A candidate must be proclaimed and must have taken his oath of office before he can be considered a
member of the House of Representatives.

In the instant case, DOMINO was not proclaimed as Congressman-elect of the Lone Congressional District of the
Province of Sarangani by reason of a Supplemental Omnibus Resolution issued by the COMELEC on the day of the
election ordering the suspension of DOMINO's proclamation should he obtain the winning number of votes. This
resolution was issued by the COMELEC in view of the non-finality of its 6 May 1998 resolution disqualifying DOMINO as
candidate for the position.

Issue raised by INTERVENOR, INTERVENOR's plea that the votes cast in favor of DOMINO be considered stray votes
cannot be sustained. The effect of a decision declaring a person ineligible to hold an office is only that the election fails
entirely, that the wreath of victory cannot be transferred[48] from the disqualified winner to the repudiated loser because
the law then as now only authorizes a declaration of election in favor of the person who has obtained a plurality of votes
and does not entitle the candidate receiving the next highest number of votes to be declared elected. In such case, the
electors have failed to make a choice and the election is a nullity.[50] To allow the defeated and repudiated candidate to
take over the elective position despite his rejection by the electorate is to disenfranchise the electorate without any fault
on their part and to undermine the importance and meaning of democracy and the people's right to elect officials of their
choice.

WHEREFORE, the instant petition is DISMISSED.

EPG CONSTRUCTION CO., CIPER ELECTRICAL & ENGINEERING, SEPTA CONSTRUCTION CO., PHIL. PLUMBING
CO., HOME CONSTRUCTION INC., WORLD BUILDERS CO., GLASS WORLD INC., PERFORMANCE BUILDERS
DEV'T. CO., DE LEON-ARANETA CONST. CO., J.D. MACAPAGAL CONST. CO., All represented by their Atty. IN
FACT, MARCELO D, FORONDA, petitioners, vs. HON. GREGORIO R. VIGILAR, In His Capacity as Secretary of
Public Works and Highways, respondent.

G.R. No. 131544 | 2001-03-16

Ponente: BUENA, J.

Subject: Doctrine of state immunity or sovereign immunity, jure imperii versus jure gestionis; Quantum meruit; State or
governmental immunity cannot serve as an instrument for perpetrating injustice on a citizen; Claims against the
government based on a void contract, compensation is based on equity.

Facts:

1. In 1983, the Ministry of Human Settlement (MHS), through the BLISS Development Corporation, intiated a housing
project on a government property along the east bank of Manggahan Floodway in Pasig

2. The MHS entered into a Memorandum of Agreement (MOA) with Ministry of Public Works and Highways (MPWH)
where the latter undertook to develop the housing site and construct thereon 145 housing units

3. By virtue of the MOA, MPWH forged individual contracts with petitioners EPG, Ciper, Septa, Phil. Plumbing, Home
Construction, World Builders, Glass World, Performance Builders, and De Leon Araneta Construction for the construction
of the housing units

4. Under the contracts, the scope of construction and funding covered only around "2/3 of each housing unit"
5. Petitioners agreed to undertake and perform "additional constructions" for the completion of the housing units despite
the fact that there was only a verbal promise, and not a written contract, by the MPWH Undersecretary Aber Canlas that
additional funds will be available and forthcoming

6. Unpaid balance for the additional constructions amounted to P5,918,315.63

7. Upon a demand letter from the petitioners, on November 14, 1988, DPWH Asst. Secretary Madamba opined that
payment of petitioners' money claims should be based on quantum meruit (what one has earned) and should be
forwarded to the Commission on Audit (COA)

8. In a Letter of the Undersecretary of Budget and Management dated December 20, 1994, the amount of P5,819,316.00
was then released for the payment of the petitioners' money claims under Advise of Allotment No. A4-1303-04-41-303

9. In an indorsement dated December 27, 1995, the COA referred anew the money claims to the DPWH

10. In a letter dated August 26, 1996, respondent Secretary Gregorio Vigilar denied the subject money claims

11. Petitioners filed before the RTC of QC, Branch 226 a Petition for Mandamus to order the respondent to pay petitioners
their money claims plus damages and attorney's fees.

12. Lower court denied the petition on February 18, 1997

Issue:

1. Whether or not the implied, verbal contracts between the petitioners and then Undersecretary Canlas should be upheld
2. Whether or not the State’s immunity from suit is absolute

Held:

1. While the court agrees with the respondent that the implied contracts are void, in view of violation of applicable laws,
auditing rules, and lack of legal requirements, it still finds merit in the instant petition
 The illegality of the implied contracts proceeds from an express declaration or prohibition by law, not from intrinsic
illegality.
 In the interest of substantial justice, petitioner-contractors right to be compensated is upheld, applying the principle of
quantum meruit
 Even the DPWH Asst. Secretary for Legal Affairs recommends their compensation; even the DPWH Auditor did not
object to the payment of money claims
2. Incidentally, respondent likewise argues that the State may not be sued in the instant case, invoking the constitutional
doctrine of Non-suability of the State, otherwise known as the Royal Prerogative of Dishonesty. 
Respondent's argument is misplaced inasmuch as the Principle of State Immunity finds no application in the case before
us. Under these circumstances, respondent may not validly invoke the Royal Prerogative of Dishonesty and conveniently
hide under the State's cloak of invincibility against suit, considering that this principle yields to certain settled exceptions.
True enough, the rule, in any case, is not absolute for it does not say that the state may not be sued under any
circumstance.
3. Jure Imperii vs Jure Gestionis- Acts jure imperii are acts of a sovereign nature and are subjected to immunity. Acts
jure gestionis are commercial acts in respect of which the state is not immune but is subject to the jurisdiction of the
territorial sovereign.

State immunity now extends only to acts jure imperii. Stated differently, a State may be said to have descended to the
level of an individual and can thus be deemed to have tacitly given its consent to be sued only when it enters into
business contracts. It does not apply where the contract relates to the exercise of its sovereign functions.

Petition granted. RTC decision reversed and set aside.