THE ordinance that the Cebu City Council approved on final reading last Wednesday (December 21, 2022) had undergone changes since Councilor Mary Ann de los Santos re-submitted it a week earlier, heeding recommendations of the committee on laws and styling.

Its chief problem has been the question of legality. The Supreme Court laid down 35 years ago the doctrine in Negros Oriental II Electric Cooperative vs Dumaguete Sangguniang Panlungsod, which has yet to be struck down or modified, namely: local legislatures cannot exercise the power of subpoena and contempt. Delegated power cannot be delegated; the power of contempt cannot be implied from the Sanggunian power to legislate, and local legislators cannot be like Congress, which is of its own kind (“sui generis”) or a class by itself.

CHANGES MADE. A copy of the Sanggunian-approved ordinance, which Mayor Mike Rama may approve or reject, shows the effort to make it hurdle the legal barrier, more notably by these:

[] The title or heading. The title when endorsed by Councilor de los Santos on December 14, 2022 was “The subpoena and contempt power of the Sangguniang Panlungsod of Cebu City.” After she yielded Wednesday to the advice of Majority Floor Leader Joy Pesquera, the heading under Section 1 became, “The procedure in the conduct of investigation in aid of legislation of the Sangguniang Panlungsod of Cebu City.”

[] Focus, purpose. The stress and purpose has been the process of the inquiry or investigation that the Revised City Charter allows.

The ordinance’s rules of procedure apparently seek to justify the need for the measure. Earlier, the City Council’s floor leaders -- the majority’s Pesquera and the minority’s Nestor Archival Sr. –- shared the view that the local ordinance provides what national laws often do not: how it’s done. Which makes the local ordinance as useful as the act of Congress.

On the matter of purpose, the ordinance, including de los Santos’s endorsement and ordinance title, harps on the claimed major intent of the measure. The phrase “in aid of legislation” appeared at least 12 times -- twice in sections 2 and 4 and three times in section 6 –- in the 12-section ordinance.

[] Won’t directly punish. The tricky part is still on the exercise of contempt power. Under existing jurisprudence of the SC, a local legislature cannot punish a non-member for contempt if its request or order to testify or produce a book or document is refused. Can it go around the ban by filing a contempt charge in court, instead of directly holding a witness in contempt and meting out the punishment, which is not more than a P5,000 fine and/or a one-year imprisonment?

The SC sometime in the future may have to decide a case where a witness disobeys a Cebu City Council subpoena and is charged by the Sanggunian in court for violation of the de los Santos ordinance. That would enrich jurisprudence, said Councilor Rey Gealon, who helped the ordinance author on the legal issue.

POWER TO INQUIRE EXPANDED. Yet, under the approved ordinance, the Sanggunian power to inquire or investigate expands the power granted to the local legislature.

The Revised Cebu City Charter (Republic Act #3857 of 1964), which proponents of the ordinance chiefly rely on, provides that investigations and inquiries of the City Council shall be limited to sworn complaints about transactions involving officials and employees, and must show “probable anomaly or irregularity.” The Sanggunian “may investigate into the conduct of any department agency, officer or employee of the city,” and the inquiry must relate to “city (government) affairs.”

There is no such limit under the de los Santos ordinance. The investigation or inquiry may be initiated by complaint or upon the initiative of a member. And the subject or scope is not confined to a “probable anomaly or irregularity.” The purpose, under the new rules, is to lead to “the possible adoption of legislative measures beneficial to the city of Cebu.” That can cover a whole lot of subjects and issues.

The City Council powers under the new ordinance, aside from issuing subpoenas and charging those who disobey them, include hearing sworn testimonies and cross-examining witnesses in a “committee hearing.”

REQUIREMENTS STILL RIGID. Complaints from outside the City Council must still be verified and the testimonies of witnesses under oath and supported by sworn affidavits. An investigation initiated within the Sanggunian -- by a member and adopted by a majority vote of the members present (presumably in a quorum) -- will proceed if verified by the committee on laws to be a case covered by the ordinance.

The committee on laws decides whether the case is (a) “adversarial,” a claim for money or other award, or for punishment of the respondent, or (b) being litigated in court or investigated by the Ombudsman or any other government office or agency. If it’s neither of the two cases, the committee will report to the Sanggunian and move for the case to undergo the earlier-mentioned “committee hearing.”

The City Council’s quest under the de los Santos ordinance is information that will “aid legislation.”

THE UMBRELLA. Should the SC invalidate any part of the ordinance that’s outside the authority of the Sanggunian or violates the Constitution, the other provisions would stand, the measure says. An umbrella of sort, if the ambiguous cloud of invalidity that hangs over the ordinance turns out to be a heavy downpour.