EXPLAINER: Cebu City Council risks challenge in court on Kons Mary Ann de los Santos ordinance granting itself power of contempt. First in the country, says Kons Rey Gealon.

File photos
File photos

WHAT JUST HAPPENED. The Cebu City Council last Wednesday (December 21, 2022) approved on final reading a proposed ordinance seeking to grant itself the power to punish with contempt the failure of any person subpoenaed by the Sanggunian to testify or submit books or documents in connection with an investigation or inquiry.

In moving for approval, Councilor Mary Ann de los Santos, its author, said she heeded the recommendation of the committee on laws. She said she also made revisions that see to it that procedure on due process and “parameters” of the power of local legislatures are followed.

Majority Floor Leader Jocelyn Pesquera wanted to return the ordinance to the committee on laws but was persuaded to drop the idea after de los Santos agreed to two changes: on a part of the title that “might confuse” people and the addition of the phrase “in aid of legislation” in the body text. The specific revisions were not immediately available: City Council Secretariat head Atty. Charisse Piramide said it releases the final version only after the mayor signs it. (Presumably, the benchmark includes the mayor’s veto or non-return of the ordinance within 10 days.)

The report of the committee on laws specified a public hearing and review by the City Legal Office. It was not known if those consultations were done. Vice Mayor and Presiding Officer Raymond Alvin Garcia last Wednesday declared that “the (proposed) ordinance is now an ordinance,” after de los Santos announced that Pesquera just gave her a “birthday present.”

INDIRECT EXERCISE OF POWER. The ordinance would punish contempt of the City Council, not by itself but through a complaint filed with the court. As early as November 17, when the committee report was approved, de los Santos announced she’d change the word “punish” to “charge.” That would make the local legislature not the actual or direct punisher; it would be through the court.

But can the Sanggunian do indirectly what it cannot do directly? Can it exercise contempt power but with the court deciding and meting out the penalty for the violation?

GEALON AND LEGAL ISSUE. The legal problem has been the sticky part of the de los Santos proposal. Supreme Court jurisprudence says local legislatures cannot exercise the power of Congress to punish disobedience to their subpoenas. The power is “sui generis” (of its own kind) to Congress and cannot be implied from delegated authority to legislate.

Committee on laws chairman Councilor Rey Gealon has known that from the start.

[] Last September 13, The Freeman reported that Gealon said “contempt and subpoena powers (for the City Council) are not possible,” citing the legal principle that “delegated power cannot be delegated” and the 1987 Supreme Court case of Negros Oriental II Electric Cooperative vs. Dumaguete Sangguniang Panglungsod.

[] On September 26, Gealon told Explainer there’s “a legal problem” but he said he’d “work” on it with de los Santos.

[] On November 9, Gealon’s committee found the proposal “a valid exercise of power” by the City Council and doesn’t violate the 1987 Constitution and the 1991 Local Government Code. But as apparent fallback, the committee required a public hearing and further vetting by the City Legal Office.

RELATED EXPLAINERS
IS BAR REMOVED? ‘FIRST IN COUNTRY.'
SCOPE OF PROBE, INQUIRY.
CONTEMPT NOT MENTIONED.
NEED FOR ORDINANCE.
DUMAGUETE, CEBU COMPARED.

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