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

[] September 26, 2022. Proposal in Cebu City Council seeks to grant itself power to investigate, subpoena persons and documents, punish with contempt.

[] November 10, 2022. Committee on laws says de los Santos ordinance granting subpoena-contempt powers is valid.

[] November 17, 2022. Councilor de los Santos changes word ‘punish’ to ‘charge.’


IS BAR REMOVED? ‘FIRST IN COUNTRY.' De los Santos and Gealon -- and the rest of the City Council -- must think that by requiring a complaint before the court and letting the court decide the violation and penalty, they have removed the legal obstacle. That obstacle is: Unlike Congress, a local legislature has no power to punish contempt.

What does that mean? Either (1) no contempt can be committed against the City Council, as it has no such power, or (2) the Sanggunian just cannot impose the punishment directly and must need the court to do that. Their approval of the ordinance means the councilors tend to believe the second interpretation.

They cannot be sure, though. Gealon himself thinks this is some experiment, which can be challenged and tested in litigation, all the way to the highest court. Gealon told Explainer Friday, December 23, he believes “this is the first in the country, which will surely enrich jurisprudence, if challenged for its constitutionality.”

SCOPE OF PROBE, INQUIRY. The Sanggunian – adopting the argument of proponent de los Santos and the committee on laws chief Gealon – relies on Section 14 of the Revised Cebu City Charter (Republic Act No. 3857 of 1964).

The provision says that “investigations and inquiries” of the City Council shall be limited to transactions at City Hall involving officials and employees, complained of in writing and under oath, and on its face must show “probable anomaly or irregularity.” It may investigate into the “official conduct of any department, agency, officer or employee of the city,” and the inquiry must relate to “city (government) affairs.”

Under the Pesquera amendment, which would cover any investigation or inquiry “in aid of legislation,” not just the cases specified in the City Charter. Does the City Council have the authority to expand the scope of its power given by the charter?

CONTEMPT NOT MENTIONED. For the investigation or inquiry, the City Charter says, the City Council may “subpoena” witnesses, administer oaths, and compel the production of books, papers and other evidence.

The law does not expressly mention “power of contempt.” Proponents of the ordinance want to imply the power to punish from the power to “compel” but then that power is not expressly granted in the City Charter. May the grant of power of contempt be implied: “delegated na, implied pa gyud”? And this: It’s the City Council, not Congress, that’s allocating the power of contempt to itself.

NEED FOR ORDINANCE. Councilor Pesquera said she saw no need for the ordinance since the City Charter already provides for it, although she appreciated the procedure, which the national law (the City Charter) does not provide. She didn’t say if the grant of contempt power to itself, even if enforced by court action, is within the Sanggunian’s authority or is “ultra vires.”

Minority Floor Leader Nestor Archival Sr. said the de los Santos ordinance supplements what the City Charter does not provide. Don’t argue with her, “it’s her birthday,” he said, which drew laughter but didn’t banish every doubt about the proposal’s legality.

DUMAGUETE, CEBU COMPARED. The Dumaguete City Council claimed the powers of subpoena and contempt but its City Charter doesn’t provide for that. The Cebu City Council now asserts that power but while its City Charter provides for the power of subpoena, it doesn’t grant the power of contempt, at least not expressly.

What is explicit and unchanged for 58 years is the jurisprudence of the Supreme Court that says local legislatures, unlike Congress which is “unique,” have no power of contempt.